EN BANC

[ G.R. No. 196425, July 24, 2012 ]

PROSPERO A. PICHAY, JR., PETITIONER, VS. OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS INVESTIGATIVE
AND ADJUDICATORY DIVISION, HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY, AND HON. CESAR V.
PURISIMA, IN HIS CAPACITY AS SECRETARY OF FINANCE, AND AS AN EX OFFICIOMEMBER OF THE MONETARY BOARD,
RESPONDENTS.

DECISION
PERLAS-BERNABE, J.:
The Case
This is a Petition for Certiorari and Prohibition with a prayer for the issuance of a temporary restraining order, seeking to declare as
unconstitutional Executive Order No. 13, entitled, “Abolishing the Presidential Anti-Graft Commission and Transferring Its
Investigative, Adjudicatory and Recommendatory Functions to the Office Of The Deputy Executive Secretary For Legal Affairs, Office
of the President”,[1] and to permanently prohibit respondents from administratively proceeding against petitioner on the strength of
the assailed executive order.

The Facts
On April 16, 2001, then President Gloria Macapagal-Arroyo issued Executive Order No. 12 (E.O. 12) creating the Presidential Anti-
Graft Commission (PAGC) and vesting it with the power to investigate or hear administrative cases or complaints for possible graft
and corruption, among others, against presidential appointees and to submit its report and recommendations to the President.
Pertinent portions of E.O. 12 provide:

Section 4. Jurisdiction, Powers and Functions. –

(a) xxx xxx xxx

(b) The Commission, acting as a collegial body, shall have the authority to investigate or hear administrative cases or complaints
against all presidential appointees in the government and any of its agencies or instrumentalities xxx
xxx
Section 8. Submission of Report and Recommendations. – After completing its investigation or hearing, the Commission en banc shall
submit its report and recommendations to the President. The report and recommendations shall state, among others, the factual
findings and legal conclusions, as well as the penalty recommend (sic) to be imposed or such other action that may be taken.”

On November 15, 2010, President Benigno Simeon Aquino III issued Executive Order No. 13 (E.O. 13), abolishing the PAGC and
transferring its functions to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA), more particularly to its newly-
established Investigative and Adjudicatory Division (IAD). The full text of the assailed executive order reads:
EXECUTIVE ORDER NO. 13

ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORY AND
RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE
PRESIDENT

WHEREAS, this administration has a continuing mandate and advocacy to fight and eradicate corruption in the different
departments, bureaus, offices and other government agencies and instrumentalities;

WHEREAS, the government adopted a policy of streamlining the government bureaucracy to promote economy and efficiency in
government;

WHEREAS, Section VII of the 1987 Philippine Constitution provides that the President shall have control of all the executive
departments, bureaus and offices;

WHEREAS, Section 31 Chapter 10, Title III, Book III of Executive Order 292 (Administrative Code of 1987) provides for the continuing
authority of the President to reorganize the administrative structure of the Office of the President;

WHEREAS, Presidential Decree (PD) No. 1416 (Granting Continuing Authority to the President of the Philippines to Reorganize the
National Government), as amended by PD 1722, provides that the President of the Philippines shall have continuing authority to
reorganize the administrative structure of the National Government and may, at his discretion, create, abolish, group, consolidate,
merge or integrate entities, agencies, instrumentalities and units of the National Government, as well as, expand, amend, change or
otherwise modify their powers, functions and authorities;

WHEREAS, Section 78 of the General Provisions of Republic Act No. 9970 (General Appropriations Act of 2010) authorizes the
President of the Philippines to direct changes in the organizational units or key positions in any department or agency;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the powers vested in me by law, do hereby
order the following:

SECTION 1. Declaration of Policy. It is the policy of the government to fight and eradicate graft and corruption in the different
departments, bureaus, offices and other government agencies and instrumentalities.

The government adopted a policy of streamlining the government bureaucracy to promote economy and efficiency in the
government.

SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To enable the Office of the President (OP) to directly investigate
graft and corrupt cases of Presidential appointees in the Executive Department including heads of government-owned and
controlled corporations, the Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital functions and other
powers and functions inherent or incidental thereto, transferred to the Office of the Deputy Executive Secretary for Legal Affairs
(ODESLA), OP in accordance with the provisions of this Executive Order.

SECTION 3. Restructuring of the Office of the Deputy Executive Secretary for Legal Affairs, OP. In addition to the Legal and Legislative
Divisions of the ODESLA, the Investigative and Adjudicatory Division shall be created.

The newly created Investigative and Adjudicatory Division shall perform powers, functions and duties mentioned in Section 2 hereof,
of PAGC.

The Deputy Executive Secretary for Legal Affairs (DESLA) will be the recommending authority to the President, thru the Executive
Secretary, for approval, adoption or modification of the report and recommendations of the Investigative and Adjudicatory Division
of ODESLA.

SECTION 4. Personnel Who May Be Affected By the Abolition of PAGC. The personnel who may be affected by the abolition of the
PAGC shall be allowed to avail of the benefits provided under existing laws if applicable. The Department of Budget and
Management (DBM) is hereby ordered to release the necessary funds for the benefits of the employees.

SECTION 5. Winding Up of the Operation and Disposition of the Functions, Positions, Personnel, Assets and Liabilities of PAGC. The
winding up of the operations of PAGC including the final disposition or transfer of their functions, positions, personnel, assets and
liabilities as may be necessary, shall be in accordance with the applicable provision(s) of the Rules and Regulations Implementing EO
72 (Rationalizing the Agencies Under or Attached to the Office of the President) dated March 15, 2002. The winding up shall be
implemented not later than 31 December 2010.

The Office of the Executive Secretary, with the assistance of the Department of Budget and Management, shall ensure the smooth
and efficient implementation of the dispositive actions and winding-up of the activities of PAGC.

SECTION 6. Repealing Clause. All executive orders, rules, regulations and other issuances or parts thereof, which are inconsistent
with the provisions of this Executive Order, are hereby revoked or modified accordingly.

SECTION 7. Effectivity. This Executive Order shall take effect immediately after its publication in a newspaper of general circulation.

On April 6, 2011, respondent Finance Secretary Cesar V. Purisima filed before the IAD-ODESLA a complaint affidavit[2] for grave
misconduct against petitioner Prospero A. Pichay, Jr., Chairman of the Board of Trustees of the Local Water Utilities Administration
(LWUA), as well as the incumbent members of the LWUA Board of Trustees, namely, Renato Velasco, Susana Dumlao Vargas,
Bonifacio Mario M. Pena, Sr. and Daniel Landingin, which arose from the purchase by the LWUA of Four Hundred Forty-Five
Thousand Three Hundred Seventy Seven (445,377) shares of stock of Express Savings Bank, Inc.

On April 14, 2011, petitioner received an Order[3] signed by Executive Secretary Paquito N. Ochoa, Jr. requiring him and his co-
respondents to submit their respective written explanations under oath. In compliance therewith, petitioner filed a Motion to
Dismiss Ex Abundante Ad Cautelam manifesting that a case involving the same transaction and charge of grave misconduct entitled,
“Rustico B. Tutol, et al. v. Prospero Pichay, et al.”, and docketed as OMB-C-A-10-0426-I, is already pending before the Office of the
Ombudsman.

Now alleging that no other plain, speedy and adequate remedy is available to him in the ordinary course of law, petitioner has
resorted to the instant petition for certiorari and prohibition upon the following grounds:
I. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE LEGISLATURE TO CREATE A PUBLIC OFFICE.

II. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE LEGISLATURE TO APPROPRIATE FUNDS.

III. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF CONGRESS TO DELEGATE QUASI-JUDICIAL POWERS TO
ADMINISTRATIVE AGENCIES.

IV. E.O. 13 IS UNCONSTITUTIONAL FOR ENCROACHING UPON THE POWERS OF THE OMBUDSMAN.

V. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE GUARANTEE OF DUE PROCESS.

VI. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE EQUAL PROTECTION CLAUSE.

Our Ruling

In assailing the constitutionality of E.O. 13, petitioner asseverates that the President is not authorized under any existing law to
create the Investigative and Adjudicatory Division, Office of the Deputy Executive Secretary for Legal Affairs (IAD-ODESLA) and that
by creating a new, additional and distinct office tasked with quasi-judicial functions, the President has not only usurped the powers
of congress to create a public office, appropriate funds and delegate quasi-judicial functions to administrative agencies but has also
encroached upon the powers of the Ombudsman.
Petitioner avers that the unconstitutionality of E.O. 13 is also evident when weighed against the due process requirement and equal
protection clause under the 1987 Constitution.

The contentions are unavailing.

The President has Continuing Authority

to Reorganize the Executive Department
under E.O. 292.

Section 31 of Executive Order No. 292 (E.O. 292), otherwise known as the Administrative Code of 1987, vests in the President the
continuing authority to reorganize the offices under him in order to achieve simplicity, economy and efficiency. E.O. 292 sanctions
the following actions undertaken for such purpose:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential
Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof or
transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the
Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other Department or Agency as well as transfer agencies to the
Office of the President from other departments or agencies.[4]

In the case of Buklod ng Kawaning EIIB v. Zamora the Court[5] affirmed that the President's authority to carry out a reorganization in
any branch or agency of the executive department is an express grant by the legislature by virtue of E.O. 292, thus:
But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of the power – that which constitutes an express grant of power.
Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), “the President, subject
to the policy of the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority
to reorganize the administrative structure of the Office of the President.” For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. (Emphasis supplied)

And in Domingo v. Zamora,[6] the Court gave the rationale behind the President's continuing authority in this wise:
The law grants the President this power in recognition of the recurring need of every President to reorganize his office “to achieve
simplicity, economy and efficiency.” The Office of the President is the nerve center of the Executive Branch. To remain effective and
efficient, the Office of the President must be capable of being shaped and reshaped by the President in the manner he deems fit
to carry out his directives and policies. After all, the Office of the President is the command post of the President. (Emphasis
supplied)

Clearly, the abolition of the PAGC and the transfer of its functions to a division specially created within the ODESLA is properly within
the prerogative of the President under his continuing “delegated legislative authority to reorganize” his own office pursuant to E.O.
292.

Generally, this authority to implement organizational changes is limited to transferring either an office or a function from the Office
of the President to another Department or Agency, and the other way around. [7] Only Section 31(1) gives the President a virtual
freehand in dealing with the internal structure of the Office of the President Proper by allowing him to take actions as extreme as
abolition, consolidation or merger of units, apart from the less drastic move of transferring functions and offices from one unit to
another. Again, in Domingo v. Zamora[8] the Court noted:
However, the President's power to reorganize the Office of the President under Section 31 (2) and (3) of EO 292 should be
distinguished from his power to reorganize the Office of the President Proper. Under Section 31 (1) of EO 292, the President can
reorganize the Office of the President Proper byabolishing, consolidating or merging units, or by transferring functions from one unit
to another. In contrast, under Section 31 (2) and (3) of EO 292, the President's power to reorganize offices outside the Office of the
President Proper but still within the Office of the President is limited to merelytransferring functions or agencies from the Office of
the President to Departments or Agencies, and vice versa.

The distinction between the allowable organizational actions under Section 31(1) on the one hand and Section 31 (2) and (3) on the
other is crucial not only as it affects employees' tenurial security but also insofar as it touches upon the validity of the
reorganization, that is, whether the executive actions undertaken fall within the limitations prescribed under E.O. 292. When the
PAGC was created under E.O. 12, it was composed of a Chairman and two (2) Commissioners who held the ranks of Presidential
Assistant II and I, respectively[9], and was placed directly “under the Office of the President.”[10] On the other hand, the ODESLA, to
which the functions of the PAGC have now been transferred, is an office within the Office of the President Proper. [11] Since both of
these offices belong to the Office of the President Proper, the reorganization by way of abolishing the PAGC and transferring its
functions to the ODESLA is allowable under Section 31 (1) of E.O. 292.

Petitioner, however, goes on to assert that the President went beyond the authority granted by E.O. 292 for him to reorganize the
executive department since his issuance of E.O. 13 did not merely involve the abolition of an office but the creation of one as well.
He argues that nowhere in the legal definition laid down by the Court in several cases does a reorganization include the act of
creating an office.
The contention is misplaced.

The Reorganization Did not Entail

the Creation of a New, Separate and
Distinct Office.

The abolition of the PAGC did not require the creation of a new, additional and distinct office as the duties and functions that
pertained to the defunct anti-graft body were simply transferred to the ODESLA, which is an existing office within the Office of the
President Proper. The reorganization required no more than a mere alteration of the administrative structure of the ODESLA through
the establishment of a third division – the Investigative and Adjudicatory Division – through which ODESLA could take on the
additional functions it has been tasked to discharge under E.O. 13. In Canonizado v. Aguirre,[12] We ruled that –
Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the
lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions.

The Reorganization was

Pursued in Good Faith.

A valid reorganization must not only be exercised through legitimate authority but must also be pursued in good faith. A
reorganization is said to be carried out in good faith if it is done for purposes of economy and efficiency. [13] It appears in this case
that the streamlining of functions within the Office of the President Properwas pursued with such purposes in mind. In
its Whereas clauses, E.O. 13 cites as bases for the reorganization the policy dictates of eradicating corruption in the government and
promoting economy and efficiency in the bureaucracy. Indeed, the economical effects of the reorganization is shown by the fact that
while Congress had initially appropriated P22 Million for the PAGC's operation in the 2010 annual budget, [14] no separate or added
funding of such a considerable amount was ever required after the transfer of the PAGC functions to the IAD-ODESLA.

Apparently, the budgetary requirements that the IAD-ODESLA needed to discharge its functions and maintain its personnel would be
sourced from the following year's appropriation for the President's Offices under the General Appropriations Act of
2011.[15] Petitioner asseverates, however, that since Congress did not indicate the manner by which the appropriation for the Office
of the President was to be distributed, taking therefrom the operational funds of the IAD-ODESLA would amount to an illegal
appropriation by the President. The contention is without legal basis.

There is no usurpation of the legislative

power to appropriate public funds.

In the chief executive dwell the powers to run government. Placed upon him is the power to recommend the budget necessary for
the operation of the Government,[16] which implies that he has the necessary authority to evaluate and determine the structure that
each government agency in the executive department would need to operate in the most economical and efficient
manner.[17] Hence, the express recognition under Section 78 of R.A. 9970 or the General Appropriations Act of 2010 of the
President’s authority to “direct changes in the organizational units or key positions in any department or agency.” The aforecited
provision, often and consistently included in the general appropriations laws, recognizes the extent of the President’s power to
reorganize the executive offices and agencies under him, which is, “even to the extent of modifying and realigning appropriations for
that purpose.”[18]

And to further enable the President to run the affairs of the executive department, he is likewise given constitutional authority to
augment any item in the General Appropriations Law using the savings in other items of the appropriation for his office. [19] In fact, he
is explicitly allowed by law to transfer any fund appropriated for the different departments, bureaus, offices and agencies of the
Executive Department which is included in the General Appropriations Act, to any program, project or activity of any department,
bureau or office included in the General Appropriations Act or approved after its enactment.[20]

Thus, while there may be no specific amount earmarked for the IADODESLA from the total amount appropriated by Congress in the
annual budget for the Office of the President, the necessary funds for the IADODESLA may be properly sourced from the President's
own office budget without committing any illegal appropriation. After all, there is no usurpation of the legislature's power to
appropriate funds when the President simply allocates the existing funds previously appropriated by Congress for his office.

The IAD-ODESLA is a fact- finding

and recommendatory body not vested
with quasi- judicial powers.

Petitioner next avers that the IAD-ODESLA was illegally vested with judicial power which is reserved to the Judicial Department and,
by way of exception through an express grant by the legislature, to administrative agencies. He points out that the name
Investigative and Adjudicatory Division is proof itself that the IAD-ODESLA wields quasi-judicial power.

The argument is tenuous. As the OSG aptly explained in its Comment, [21] while the term “adjudicatory” appears part of its
appellation, the IAD-ODESLA cannot try and resolve cases, its authority being limited to the conduct of investigations, preparation of
reports and submission of recommendations. E.O. 13 explicitly states that the IAD-ODESLA shall “perform powers, functions and
duties xxx, of PAGC.”[22]

Under E.O. 12, the PAGC was given the authority to “investigate or hear administrative cases or complaints against all presidential
appointees in the government”[23] and to “submit its report and recommendations to the President.”[24] The IAD-ODESLA is a fact-
finding and recommendatory body to the President, not having the power to settle controversies and adjudicate cases. As the Court
ruled in Cariño v. Commission on Human Rights,[25] and later reiterated in Biraogo v. The Philippine Truth Commission:[26]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency
or office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be
considered as such, the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the
authority of applying the law to the factual conclusions to the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law.

The President's authority to issue E.O. 13 and constitute the IAD ODESLA as his fact-finding investigator cannot be doubted. After all,
as Chief Executive, he is granted full control over the Executive Department to ensure the enforcement of the laws. Section 17,
Article VII of the Constitution provides:
Section 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.

The obligation to see to it that laws are faithfully executed necessitates the corresponding power in the President to conduct
investigations into the conduct of officials and employees in the executive department. [27]

The IAD-ODESLA does not encroach

upon the powers and duties of the
Ombudsman.

Contrary to petitioner's contention, the IAD-ODESLA did not encroach upon the Ombudsman's primary jurisdiction when it took
cognizance of the complaint affidavit filed against him notwithstanding the earlier filing of criminal and administrative cases
involving the same charges and allegations before the Office of the Ombudsman. The primary jurisdiction of the Ombudsman to
investigate and prosecute cases refers to criminal cases cognizable by the Sandiganbayan and not to administrative cases. It is only
in the exercise of its primary jurisdiction that the Ombudsman may, at any time, take over the investigation being conducted by
another investigatory agency. Section 15 (1) of R.A. No. 6770 or the Ombudsman Act of 1989, empowers the Ombudsman to –
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such cases. (Emphasis supplied)

Since the case filed before the IAD-ODESLA is an administrative disciplinary case for grave misconduct, petitioner may not invoke the
primary jurisdiction of the Ombudsman to prevent the IAD-ODESLA from proceeding with its investigation. In any event, the
Ombudsman's authority to investigate both elective and appointive officials in the government, extensive as it may be, is by no
means exclusive. It is shared with other similarly authorized government agencies.[28]

While the Ombudsman's function goes into the determination of the existence of probable cause and the adjudication of the merits
of a criminal accusation, the investigative authority of the IAD-ODESLA is limited to that of a fact-finding investigator whose
determinations and recommendations remain so until acted upon by the President. As such, it commits no usurpation of the
Ombudsman's constitutional duties.

Executive Order No. 13 Does Not

Violate Petitioner's Right to Due
Process and the Equal Protection
of the Laws.

Petitioner goes on to assail E.O. 13 as violative of the equal protection clause pointing to the arbitrariness of limiting the IAD-
ODESLA's investigation only to presidential appointees occupying upper-level positions in the government. The equal protection of
the laws is a guaranty against any form of undue favoritism or hostility from the government. [29] It is embraced under the due
process concept and simply requires that, in the application of the law, “all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed.” [30] The equal protection clause, however, is not absolute but subject
to reasonable classification so that aggrupations bearing substantial distinctions may be treated differently from each other. This we
ruled in Farinas v. Executive Secretary,[31] wherein we further stated that –
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall
be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies
alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such
class and those who do not. (Emphasis supplied)

Presidential appointees come under the direct disciplining authority of the President. This proceeds from the well settled principle
that, in the absence of a contrary law, the power to remove or to discipline is lodged in the same authority on which the power to
appoint is vested.[32] Having the power to remove and/or discipline presidential appointees, the President has the corollary authority
to investigate such public officials and look into their conduct in office. [33] Petitioner is a presidential appointee occupying the high-
level position of Chairman of the LWUA. Necessarily, he comes under the disciplinary jurisdiction of the President, who is well within
his right to order an investigation into matters that require his informed decision.

There are substantial distinctions that set apart presidential appointees occupying upper-level positions in government from non-
presidential appointees and those that occupy the lower positions in government. In Salumbides v. Office of the Ombudsman,[34] we
had ruled extensively on the substantial distinctions that exist between elective and appointive public officials, thus:
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of
the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent
conditions. On the other hand,appointive officials hold their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others
serve at the pleasure of the appointing authority.
x x x x

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves
the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their
constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such
officials until the end of the term for which they were elected. In contrast,there is no such expectation insofar as appointed officials
are concerned. (Emphasis supplied)

Also, contrary to petitioner's assertions, his right to due process was not violated when the IAD-ODESLA took cognizance of the
administrative complaint against him since he was given sufficient opportunity to oppose the formal complaint filed by Secretary
Purisima. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer
the accusations against him constitute the minimum requirements of due process, [35] which simply means having the opportunity to
explain one’s side.[36] Hence, as long as petitioner was given the opportunity to explain his side and present evidence, the
requirements of due process are satisfactorily complied with because what the law abhors is an absolute lack of opportunity to be
heard.[37] The records show that petitioner was issued an Order requiring him to submit his written explanation under oath with
respect to the charge of grave misconduct filed against him. His own failure to submit his explanation despite notice defeats his
subsequent claim of denial of due process.

Finally, petitioner doubts that the IAD-ODESLA can lawfully perform its duties as an impartial tribunal, contending that both the IAD-
ODESLA and respondent Secretary Purisima are connected to the President. The mere suspicion of partiality will not suffice to
invalidate the actions of the IADODESLA. Mere allegation is not equivalent to proof. Bias and partiality cannot be
presumed.[38] Petitioner must present substantial proof to show that the lAD-ODES LA had unjustifiably sided against him in the
conduct of the investigation. No such evidence has been presented as to defeat the presumption of regularity m the perfonnance of
the fact-finding investigator's duties. The assertion, therefore, deserves scant consideration.

Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal
breach of the Constitution, not a doubtful and argumentative one. [39] Petitioner has failed to discharge the burden of proving the
illegality of E.O. 13, which IS indubitably a valid exercise of the President's continuing authority to reorganize the Office of the
President.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.
 EN BANC
[ G.R. No. 187298, July 03, 2012 ]
JAMAR M. KULAYAN, TEMEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, AND SPO1 SATTAL H. JADJULI, PETITIONER,
VS. GOV. ABDUSAKUR M. TAN, IN HIS CAPACITY AS GOVERNOR OF SULU; GEN. JUANCHO SABAN, COL. EUGENIO CLEMEN PN,
P/SUPT. JULASIRIM KASIM AND P/SUPT. BIENVENIDO G. LATAD, IN THEIR CAPACITY AS OFFICERS OF THE PHIL. MARINES AND
PHIL. NATIONAL POLICE, RESPECTIVELY, RESPONDENTS.

DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross (ICRC) were kidnapped in the vicinity of the
Provincial Capitol in Patikul, Sulu. [1] Andres Notter, a Swiss national and head of the ICRC in Zamboanga City, Eugenio Vagni, an
Italian national and ICRC delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly inspecting a water and inspecting a
water sanitation project for the the Sulu Provincial Jail when inspecting a water and sanitation project for the Sulu Provincial Jail
when they were seized by three armed men who were later confirmed to be members of the Abu Sayyaf Group (ASG). [2] The leader
of the alleged kidnappers was identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader
Parad, one of the known leaders of the Abu Sayyaf.

On 21 January 2009, a task force was created by the ICRC and the Philippine National Police (PNP), which then organized a parallel
local group known as the Local Crisis Committee.[3] The local group, later renamed Sulu Crisis Management Committee, convened
under the leadership of respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Its armed forces component was headed
by respondents General Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was headed by respondent
Police Superintendent Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous Region of Muslim
Mindanao (ARMM).[4]

Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians coming from different municipalities,
who were redeployed to surrounding areas of Patikul.[5] The organization of the CEF was embodied in a “Memorandum of
Understanding”[6] entered into between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed
Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police, represented by P/SUPT. Latag.
The Whereas clauses of the Memorandum alluded to the extraordinary situation in Sulu, and the willingness of civilian supporters of
the municipal mayors to offer their services in order that “the early and safe rescue of the hostages may be achieved.” [7]

This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities of each of the party signatories, as
follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for the activation of the CEF;
2) The Provincial Government shall identify the Local Government Units which shall participate in the operations and to propose
them for the approval of the parties to this agreement;
3) The Provincial Government shall ensure that there will be no unilateral action(s) by the CEF without the knowledge and
approval by both parties.

Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):

1) The AFP/PNP shall remain the authority as prescribed by law in military operations and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the course of operation(s)/movements of
the CEF.[8]

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government, announced to the media that
government troops had cornered some one hundred and twenty (120) Abu Sayyaf members along with the three (3)
hostages.[9] However, the ASG made contact with the authorities and demanded that the military pull its troops back from the jungle
area.[10] The government troops yielded and went back to their barracks; the Philippine Marines withdrew to their camp, while
police and civilian forces pulled back from the terrorists’ stronghold by ten (10) to fifteen (15) kilometers. Threatening that one of
the hostages will be beheaded, the ASG further demanded the evacuation of the military camps and bases in the
different barangays in Jolo.[11] The authorities were given no later than 2:00 o’clock in the afternoon of 31 March 2009 to comply. [12]

On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring a state of emergency in
the province of Sulu.[13] It cited the kidnapping incident as a ground for the said declaration, describing it as a terrorist act pursuant
to the Human Security Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which bestows
on the Provincial Governor the power to carry out emergency measures during man-made and natural disasters and calamities, and
to call upon the appropriate national law enforcement agencies to suppress disorder and lawless violence.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints and chokepoints, conduct general
search and seizures including arrests, and other actions necessary to ensure public safety. The pertinent portion of the proclamation
states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE
OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL
POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT
THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
 2. The imposition of curfew for the entire province subject to such Guidelines as may be issued by proper
authorities;
3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters;
and
4. To conduct such other actions or police operations as may be necessary to ensure public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS 31ST DAY OF MARCH 2009.
Sgd. Abdusakur M. Tan
Governor.[14]

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT. Julasirim Kasim. [15] Upon arriving
at the police station, he was booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who were all his
deceased relatives. Upon admitting that he was indeed related to the three, he was detained. After a few hours, former Punong
Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong
Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were also arrested. [16] The affidavit[17] of the apprehending
officer alleged that they were suspected ASG supporters and were being arrested under Proclamation 1-09. The following day, 2
April 2009, the hostage Mary Jane Lacaba was released by the ASG.

On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the “Guidelines for the Implementation of
Proclamation No. 1, Series of 2009 Declaring a State of Emergency in the Province of Sulu.” [18] These Guidelines suspended all
Permits to Carry Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to seek exemption
from the gun ban only by applying to the Office of the Governor and obtaining the appropriate identification cards. The said
guidelines also allowed general searches and seizures in designated checkpoints and chokepoints.

On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli,
residents of Patikul, Sulu, filed the present Petition for Certiorari and Prohibition, [19] claiming that Proclamation 1-09 was issued with
grave abuse of discretion amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms guaranteed under
Article III of the 1987 Constitution.

Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra vires, and thus null and void, for
violating Sections 1 and 18, Article VII of the Constitution, which grants the President sole authority to exercise emergency powers
and calling-out powers as the chief executive of the Republic and commander-in-chief of the armed forces.[20] Additionally,
petitioners claim that the Provincial Governor is not authorized by any law to create civilian armed forces under his command, nor
regulate and limit the issuances of PTCFORs to his own private army.

In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of courts when they filed the instant
petition directly in the court of last resort, even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed
concurrent jurisdiction with the Supreme Court under Rule 65.[21] This is the only procedural defense raised by respondent Tan.
Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido Latag did not file their
respective Comments.

On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as Governor Tan allegedly acted pursuant
to Sections 16 and 465 of the Local Government Code, which empowers the Provincial Governor to carry out emergency measures
during calamities and disasters, and to call upon the appropriate national law enforcement agencies to suppress disorder, riot,
lawless violence, rebellion or sedition.[22] Furthermore, the Sangguniang Panlalawigan of Sulu authorized the declaration of a state
of emergency as evidenced by Resolution No. 4, Series of 2009 issued on 31 March 2009 during its regular session. [23]

The threshold issue in the present case is whether or not Section 465, in relation to Section 16, of the Local Government Code
authorizes the respondent governor to declare a state of emergency, and exercise the powers enumerated under Proclamation 1-09,
specifically the conduct of general searches and seizures. Subsumed herein is the secondary question of whether or not the
provincial governor is similarly clothed with authority to convene the CEF under the said provisions.

We grant the petition.

I. Transcendental public importance

warrants a relaxation of the Doctrine
of Hierarchy of Courts

We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which allegedly prevents judicial review by this
Court in the present case, citing for this specific purpose, Montes v. Court of Appeals and Purok Bagong Silang Association, Inc. v.
Yuipco.[24] Simply put, the doctrine provides that where the issuance of an extraordinary writ is also within the competence of the CA
or the RTC, it is in either of these courts and not in the Supreme Court, that the specific action for the issuance of such writ must be
sought unless special and important laws are clearly and specifically set forth in the petition. The reason for this is that this Court is a
court of last resort and must so remain if it is to perform the functions assigned to it by the Constitution and immemorial tradition. It
cannot be burdened with deciding cases in the first instance.[25]

The said rule, however, is not without exception. In Chavez v. PEA-Amari,[26] the Court stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle of hierarchy of
courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional questions of transcendental importance to the public. The Court can
resolve this case without determining any factual issue related to the case. Also, the instant case is a petition for mandamus which
falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary
jurisdiction over the instant case.[27]

The instant case stems from a petition for certiorari and prohibition, over which the Supreme Court possesses original
jurisdiction.[28] More crucially, this case involves acts of a public official which pertain to restrictive custody, and is thus impressed
with transcendental public importance that would warrant the relaxation of the general rule. The Court would be remiss in its
constitutional duties were it to dismiss the present petition solely due to claims of judicial hierarchy.

In David v. Macapagal-Arroyo,[29] the Court highlighted the transcendental public importance involved in cases that concern
restrictive custody, because judicial review in these cases serves as “a manifestation of the crucial defense of civilians ‘in police
power’ cases due to the diminution of their basic liberties under the guise of a state of emergency.” [30] Otherwise, the importance of
the high tribunal as the court of last resort would be put to naught, considering the nature of “emergency” cases, wherein the
proclamations and issuances are inherently short-lived. In finally disposing of the claim that the issue had become moot and
academic, the Court also cited transcendental public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga (restrictive custody) at pagmonitor
ng galaw (monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na
nakapaloob dito, (b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang kapulisan tungkol
dito.

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.

…There is no question that the issues being raised affect the public interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by constitutional guarantees. And lastly, respondents
contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing exceptions. Every bad,
unusual incident where police officers figure in generates public interest and people watch what will be done or not done to
them. Lack of disciplinary steps taken against them erode public confidence in the police institution. As petitioners themselves
assert, the restrictive custody of policemen under investigation is an existing practice, hence, the issue is bound to crop up every
now and then. The matter is capable of repetition or susceptible of recurrence. It better be resolved now for the education and
guidance of all concerned.[31] (Emphasis supplied)

Hence, the instant petition is given due course, impressed as it is with transcendental public importance.

II. Only the President is vested

with calling-out powers, as the
commander-in-chief of the Republic
i. One executive, one commander-in-chief

As early as Villena v. Secretary of Interior,[32] it has already been established that there is one repository of executive powers, and
that is the President of the Republic. This means that when Section 1, Article VII of the Constitution speaks of executive power, it is
granted to the President and no one else.[33] As emphasized by Justice Jose P. Laurel, in his ponencia in Villena:
With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible
without the projection of judicial searchlight, and that is the establishment of a single, not plural, Executive. The first section of
Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that “The
executive power shall be vested in a President of the Philippines.” This means that the President of the Philippines is the Executive of
the Government of the Philippines, and no other. [34]

Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23,
Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof.

ii. The exceptional character of

Commander-in-Chief powers
dictate that they are exercised
by one president

Springing from the well-entrenched constitutional precept of One President is the notion that there are certain acts which, by their
very nature, may only be performed by the president as the Head of the State. One of these acts or prerogatives is the bundle of
Commander-in-Chief powers to which the “calling-out” powers constitutes a portion. The President’s Emergency Powers, on the
other hand, is balanced only by the legislative act of Congress, as embodied in the second paragraph of Section 23, Article 6 of the
Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. [35]
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing
to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance
with its rules without need of a call.[36]

The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. [37] By
constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the
President alone. As noted in Villena, “(t)here are certain constitutional powers and prerogatives of the Chief Executive of the Nation
which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers
by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law x x x. [38]

Indeed, while the President is still a civilian, Article II, Section 3 [39] of the Constitution mandates that civilian authority is, at all times,
supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3,
when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed
forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-
in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to
delegate the actual command of the armed forces to military experts; but the ultimate power is his. [40] As Commander-in-Chief, he is
authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the
manner he may deem most effectual.[41]

In the case of Integrated Bar of the Philippines v. Zamora,[42] the Court had occasion to rule that the calling-out powers belong solely
to the President as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises
a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in
a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is
totally bereft of factual basis.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the
armed forces and to determine the necessity for the exercise of such power.[43] (Emphasis supplied)

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of
the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President’s
action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare
martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and review without any qualification. [44]

That the power to call upon the armed forces is discretionary on the president is clear from the deliberation of the Constitutional
Commission:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief.
First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of
the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is
subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly.
But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his
judgment cannot be reviewed by anybody.
xxx xxx xxx

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest
leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.

x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces,
full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless
violence, invasion or rebellion.[45] (Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia,[46] the Court characterized these powers as exclusive to the President, precisely
because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers
which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least
call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of
martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the
constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is
of similar gravitas and exceptional import.[47]

In addition to being the commander-in-chief of the armed forces, the President also acts as the leader of the country’s police forces,
under the mandate of Section 17, Article VII of the Constitution, which provides that, “The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.” During the deliberations of the
Constitutional Commission on the framing of this provision, Fr. Bernas defended the retention of the word “control,” employing the
same rationale of singularity of the office of the president, as the only Executive under the presidential form of government.[48]

Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: “The State shall establish and maintain
one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police
commission. The authority
of local executives over the police units in their jurisdiction shall be provided by law.”[49]

A local chief executive, such as the provincial governor, exercises operational supervision over the police, [50] and may exercise
control only in day-to-day operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full control of the police by the
local chief executive and local executives, the mayors. By our experience, this has spawned warlordism, bossism and sanctuaries
for vices and abuses. If the national government does not have a mechanism to supervise these 1,500 legally, technically separate
police forces, plus 61 city police forces, fragmented police system, we will have a lot of difficulty in presenting a modern professional
police force. So that a certain amount of supervision and control will have to be exercised by the national government.

For example, if a local government, a town cannot handle its peace and order problems or police problems, such as riots,
conflagrations or organized crime, the national government may come in, especially if requested by the local executives. Under
that situation, if they come in under such an extraordinary situation, they will be in control. But if the day-to-day business of police
investigation of crime, crime prevention, activities, traffic control, is all lodged in the mayors, and if they are in complete operational
control of the day-to-day business of police service, what the national government would control would be the administrative
aspect.
xxx xxx xxx

Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties being performed by the ordinary
policemen, will be under the supervision of the local executives?

Mr. Natividad: Yes, Madam President.

xxx xxx xxx

Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by the National Police Commission?

Mr. Natividad: If the situation is beyond the capacity of the local governments.[51] (Emphases supplied)

Furthermore according to the framers, it is still the President who is authorized to exercise supervision and control over the police,
through the National Police Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all the armed forces.

Mr. Natividad: Yes, Madam President.

Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose they come under the Commander-
in-Chief powers of the President of the Philippines.

Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of the President of the Philippines.

Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.

Mr. Natividad: He is the President.

Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the President is the Commander-in-Chief of
all the armed forces.

Mr. Natividad: No, not under the Commander-in-Chief provision.

Mr. Rodrigo: There are two other powers of the President. The President has control over ministries, bureaus and offices, and
supervision over local governments. Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.

Mr. Rodrigo: Control and supervision.

Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President. [52]

In the discussions of the Constitutional Commission regarding the above provision it is clear that the framers never intended for
local chief executives to exercise unbridled control over the police in emergency situations. This is without prejudice to their
authority over police units in their jurisdiction as provided by law, and their prerogative to seek assistance from the police in day to
day situations, as contemplated by the Constitutional Commission. But as a civilian agency of the government, the police, through
the NAPOLCOM, properly comes within, and is subject to, the exercise by the President of the power of executive control.[53]

iii. The provincial governor does

not possess the same calling-out
powers as the President

Given the foregoing, respondent provincial governor is not endowed with the power to call upon the armed forces at his own
bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and
called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and
may not be justified by the invocation of Section 465 of the Local Government Code, as will be discussed subsequently.

Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo, which dealt squarely with
the issue of the declaration of a state of emergency, does it limit the said authority to the President alone. Respondents contend
that the ruling in David expressly limits the authority to declare anational emergency, a condition which covers the entire country,
and does not include emergency situations in local government units. [54] This claim is belied by the clear intent of the framers that in
all situations involving threats to security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the
President who possesses the sole authority to exercise calling-out powers. As reflected in the Journal of the Constitutional
Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of “invasion or rebellion.” Mr.
Sumulong stated that the committee could not accept the amendment because under the first section of Section 15, the President
may call out and make use of the armed forces to prevent or suppress not only lawless violence but even invasion or rebellion
without declaring martial law. He observed that by deleting “invasion or rebellion” and substituting PUBLIC DISORDER, the President
would have to declare martial law before he can make use of the armed forces to prevent or suppress lawless invasion or rebellion.

Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where there is some lawless violence
in a small portion of the country or public disorder in another at which times, the armed forces can be called to prevent or
suppress these incidents. He noted that the Commander-in-Chief can do so in a minor degree but he can also exercise such
powers should the situation worsen. The words “invasion or rebellion” to be eliminated on line 14 are covered by the following
sentence which provides for “invasion or rebellion.” He maintained that the proposed amendment does not mean that under such
circumstances, the President cannot call on the armed forces to prevent or suppress the same. [55] (Emphasis supplied)

III. Section 465 of the Local Government

Code cannot be invoked to justify the powers
enumerated under Proclamation 1-09

Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act, and used this incident to justify the
exercise of the powers enumerated under Proclamation 1-09.[56] He invokes Section 465, in relation to Section 16, of the Local
Government Code, which purportedly allows the governor to carry out emergency measures and call upon the appropriate national
law enforcement agencies for assistance. But a closer look at the said proclamation shows that there is no provision in the Local
Government Code nor in any law on which the broad and unwarranted powers granted to the Governor may be based.

Petitioners cite the implementation of “General Search and Seizure including arrests in the pursuit of the kidnappers and their
supporters,”[57] as being violative of the constitutional proscription on general search warrants and general seizures. Petitioners
rightly assert that this alone would be sufficient to render the proclamation void, as general searches and seizures are proscribed,
for being violative of the rights enshrined in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. [58]

In fact, respondent governor has arrogated unto himself powers exceeding even the martial law powers of the President, because as
the Constitution itself declares, “A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.” [59]

We find, and so hold, that there is nothing in the Local Government Code which justifies the acts sanctioned under the said
Proclamation. Not even Section 465 of the said Code, in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants
pursuant to Section 16 of this Code, the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and activities of the provincial government, and in
this connection, shall:

xxx xxx xxx

(vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made and natural disasters and
calamities;

(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of the appropriate corporate powers
provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the
province and, in addition to the foregoing, shall:
xxx xxx xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition
or to apprehend violators of the law when public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation or the violators.

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said provision expressly refers to calamities
and disasters, whether man-made or natural. The governor, as local chief executive of the province, is certainly empowered to enact
and implement emergency measures during these occurrences. But the kidnapping incident in the case at bar cannot be considered
as a calamity or a disaster. Respondents cannot find any legal mooring under this provision to justify their actions.

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First, the Armed Forces of the
Philippines does not fall under the category of a “national law enforcement agency,” to which the National Police Commission
(NAPOLCOM) and its departments belong. Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and
defend the Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of the national
territory.[60] Second, there was no evidence or even an allegation on record that the local police forces were inadequate to cope with
the situation or apprehend the violators. If they were inadequate, the recourse of the provincial governor was to ask the assistance
of the Secretary of Interior and Local Government, or such other authorized officials, for the assistance of national law enforcement
agencies.

The Local Government Code does not involve the diminution of central powers inherently vested in the National Government,
especially not the prerogatives solely granted by the Constitution to the President in matters of security and defense.

The intent behind the powers granted to local government units is fiscal, economic, and administrative in nature. The Code is
concerned only with powers that would make the delivery of basic services more effective to the constituents, [61] and should not be
unduly stretched to confer calling-out powers on local executives.

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a step towards the autonomy of
local government units (LGUs), and is actually an experiment whose success heavily relies on the power of taxation of the LGUs. The
underpinnings of the Code can be found in Section 5, Article II of the 1973 Constitution, which allowed LGUs to create their own
sources of revenue.[62] During the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that
“Decentralization is an administrative concept and the process of shifting and delegating power from a central point to subordinate
levels to promote independence, responsibility, and quicker decision- making. … (I)t does not involve any transfer of final authority
from the national to field levels, nor diminution of central office powers and responsibilities. Certain government agencies,
including the police force, are exempted from the decentralization process because their functions are not inherent in local
government units.”[63]

IV. Provincial governor is not

authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private citizen armies is proscribed. Section 24 of
Article XVIII of the Constitution mandates that:
Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces
including Civilian Home Defense Forces (CHDF) not consistent with the citizen armed force established in this Constitution, shall be
dissolved or, where appropriate, converted into the regular force.
Additionally, Section 21of Article XI states that, “The preservation of peace and order within the regions shall be the responsibility of
the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The
defense and security of the regions shall be the responsibility of the National Government.”

Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the organization of private armed
groups similar to the CEF convened by the respondent Governor. The framers of the Constitution were themselves wary of armed
citizens’ groups, as shown in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating under the cloak, under the
mantle of legality is creating a lot of problems precisely by being able to operate as an independent private army for many
regional warlords. And at the same time, this I think has been the thrust, the intent of many of the discussions and objections to
the paramilitary units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other armed torces not recognized by
constituted authority which shall be dismantled and dissolved. In my trips to the provinces, I heard of many abuses committed by
the CHDF (Civilian Home Defense Forces), specially in Escalante, Negros Occidental. But I do not know whether a particular CHDF is
approved or authorized by competent authority. If it is not authorized, then the CHDF will have to be dismantled. If some CHDFs, say
in other provinces, are authorized by constituted authority, by the Armed Forces of the Philippines, through the Chief of Staff or the
Minister of National Defense, if they are recognized and authorized, then they will not be dismantled. But I cannot give a categorical
answer to any specific CHDF unit, only the principle that if they are armed forces which are not authorized, then they should be
dismantled.[64] (Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian Emergency Force (CEF) in the
present case, is also invalid.

WHEREFORE, the instant petition ts GRANTED. Judgment is rendered commanding respondents to desist from further proceedings
in implementing Proclamation No. 1, Series of 2009, and its Implementing Guidelines. The said proclamation and guidelines are
hereby declared NULL and VOID for having been issued in grave abuse of discretion, amounting to lack or excess of jurisdiction.

SO ORDERED.
 EN BANC
[ G.R. No. 196271, February 28, 2012 ]
DATU MICHAEL ABAS KIDA, IN HIS PERSONAL CAPACITY, AND IN REPRESENTATION OF MAGUINDANAO FEDERATION OF
AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, AND BASSAM ALUH SAUPI, PETITIONERS, VS.
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, THRU SPEAKER
FELICIANO BELMONTE, COMMISSION ON ELECTIONS, THRU ITS CHAIRMAN, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., OFFICE
OF THE PRESIDENT EXECUTIVE SECRETARY, FLORENCIO ABAD, JR., SECRETARY OF BUDGET, AND ROBERTO TAN, TREASURER OF
THE PHILIPPINES, RESPONDENTS.

RESOLUTION
BRION, J.:
We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion
for reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante ad cautelam motion for
reconsideration filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty.
Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by petitioners Almarim Centi Tillah, Datu Casan
Conding Cana and Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation and motion filed by
petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the very urgent motion to issue clarificatory resolution that the
temporary restraining order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld the constitutionality of Republic Act (RA) No. 10153.
Pursuant to the constitutional mandate of synchronization, RA No. 10153 postponed the regional elections in the Autonomous
Region in Muslim Mindanao (ARMM) (which were scheduled to be held on the second Monday of August 2011) to the second
Monday of May 2013 and recognized the President’s power to appoint officers-in-charge (OICs) to temporarily assume these
positions upon the expiration of the terms of the elected officials.
The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:
I.THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT
THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL GOVERNMENT
UNITS.
II.R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.
III.THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE LAWS.
IV.SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18, ARTICLE X OF THE CONSTITUTION.
V.BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.][1]

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I.THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM CANNOT BE CONSIDERED AS OR EQUATED
WITH THE TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A) THERE IS NO
EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND (B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE,
POWERS AND AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM TRADITIONAL LGUs.
II.THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND REPRESENTATIVE EXECUTIVE
DEPARTMENT AND LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE PRESIDENT OF
OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR
AND MEMBERS OF THE REGIONAL ASSEMBLY.
III.THE PRESIDENT’S APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE
OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING THE
AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING ELECTIVE POSITIONS.
IV.THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM ELECTED OFFICIALS PENDING THE ELECTION AND
QUALIFICATION OF THEIR SUCCESSORS.
V.THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED
FOR BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC ACTS.
VI.THE REQUIREMENT OF A SUPERMAJORITY OF ¾ VOTES IN THE HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE
VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN IRREPEALABLE LAW.
VII.THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC
ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION.
VIII.SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE
CONSTITUTION.
IX.THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN
IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING COMELEC’S HOLDING OF SPECIAL
ELECTIONS.[2] (italics supplied)

The petitioner in G.R. No. 196305 further asserts that:

I.BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE DOUBT
OR AMBIGUITY IN ITS LANGUAGE.

THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER
OF ELECTIVE OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED “INTENT” OF THE FRAMERS, AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE
HONORABLE SUPREME COURT MAY HAVE VIOLATED THE FOREMOST RULE IN STATUTORY CONSTRUCTION.

xxxx
II.THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE,
RA 10153 SHOULD BE CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.

III.THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT SET
FORTH IN RA 9054 AS UNCONSTITUTIONAL.

IV.THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN
AMENDING THE ORGANIC ACT.

V.THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS
UNCONSTITUTIONAL.

VI.THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.[3]
(italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:

A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL CHANGE IN
THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A
PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY
CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN “INTERIM MEASURE”.
B.
THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE PRESIDENT OF OICs FOR THE ARMM REGIONAL
GOVERNMENT IS NOT VIOLATIVE OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS
ARE ELECTED IN EITHER AN ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM
REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7,
ARTICLE VII OF R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE
ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013
SYNCHRONIZED ELECTIONS.[4]
Finally, the petitioners in G.R. No. 197280
argue that:
a) the Constitutional mandate of synchronization does not apply to the ARMM elections;
b) RA No. 10153 negates the basic principle of republican democracy which, by constitutional mandate, guides the
governance of the Republic;
c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with the 2/3 vote from the House of
Representatives and the Senate, voting separately, and be ratified in a plebiscite;
d) if the choice is between elective officials continuing to hold their offices even after their terms are over and non-
elective individuals getting into the vacant elective positions by appointment as OICs, the holdover option is the better
choice;
e) the President only has the power of supervision over autonomous regions, which does not include the power to
appoint OICs to take the place of ARMM elective officials; and
f) it would be better to hold the ARMM elections separately from the national and local elections as this will make it
easier for the authorities to implement election laws.

In essence, the Court is asked to resolve the following questions:

(a) Does the Constitution mandate the synchronization of ARMM regional elections with national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply with the supermajority vote and
plebiscite requirements?
(c) Is the holdover provision in RA No. 9054 constitutional?
(d) Does the COMELEC have the power to call for special elections in ARMM?
(e) Does granting the President the power to appoint OICs violate the elective and representative nature of ARMM
regional legislative and executive offices?
(f) Does the appointment power granted to the President exceed the President’s supervisory powers over autonomous
regions?

The Court’s Ruling

We deny the motions for lack of merit.

Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the Constitution mandates the synchronization of national and local elections. While the
Constitution does not expressly instruct Congress to synchronize the national and local elections, the intention can be inferred from
the following provisions of the Transitory Provisions (Article XVIII) of the Constitution, which state:
Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of
the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan
Manila area.

Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall
serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and
the remaining twelve for three years.

xxx x

Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes
of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May,
1992.

To fully appreciate the constitutional intent behind these provisions, we refer to the discussions of the Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily indicate as Section 14. It reads:
“THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL
SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992.”

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action taken by the Commission on
Section 2 earlier, I am formulating a new proposal. It will read as follows: “THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30,
1992.”

I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to the incumbent President and
Vice-President until 1992. Necessarily then, since the term provided by the Commission for Members of the Lower House and for
local officials is three years, if there will be an election in 1987, the next election for said officers will be in 1990, and it would be very
close to 1992. We could never attain, subsequently, any synchronization of election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we should not have a local
election or an election for Members of the Lower House in 1990 for them to be able to complete their term of three years each. And
if we also stagger the Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will be an
election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election will
be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12
Senators and of course to the local officials and the Members of the Lower House. But, definitely, thereafter we can never have an
election once every three years, therefore defeating the very purpose of the Commission when we adopted the term of six years for
the President and another six years for the Senators with the possibility of staggering with 12 to serve for six years and 12 for three
years insofar as the first Senators are concerned. And so my proposal is the only way to effect the first synchronized election which
would mean, necessarily, a bonus of two years to the Members of the Lower House and a bonus of two years to the local elective
officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who proposed that in order to
synchronize the elections every three years, which the body approved — the first national and local officials to be elected in 1987
shall continue in office for five years, the same thing the Honorable Davide is now proposing. That means they will all serve until
1992, assuming that the term of the President will be for six years and continue beginning in 1986. So from 1992, we will again have
national, local and presidential elections. This time, in 1992, the President shall have a term until 1998 and the first 12 Senators
will serve until 1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995.
From then on, we shall have an election every three years.
So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our elections every three years which
was already approved by the body.

Thank you, Mr. Presiding Officer.

xxxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and Vice-President in 1992.
MR. DAVIDE. Yes.
MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and local officials with the
election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of the Transitory
Provisions on the term of the incumbent President and Vice-President would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the municipal
officials.[5] (emphases and underscoring ours)

The framers of the Constitution could not have expressed their objective more clearly – there was to be a single election in 1992 for
all elective officials – from the President down to the municipal officials. Significantly, the framers were even willing to temporarily
lengthen or shorten the terms of elective officials in order to meet this objective, highlighting the importance of this constitutional
mandate.

We came to the same conclusion in Osmeña v. Commission on Elections,[6] where we unequivocally stated that “the Constitution has
mandated synchronized national and local elections."[7] Despite the length and verbosity of their motions, the petitioners have failed
to convince us to deviate from this established ruling.

Neither do we find any merit in the petitioners’ contention that the ARMM elections are not covered by the constitutional mandate
of synchronization because the ARMM elections were not specifically mentioned in the above-quoted Transitory Provisions of the
Constitution.

That the ARMM elections were not expressly mentioned in the Transitory Provisions of the Constitution on synchronization cannot
be interpreted to mean that the ARMM elections are not covered by the constitutional mandate of synchronization. We have to
consider that the ARMM, as we now know it, had not yet been officially organized at the time the Constitution was enacted and
ratified by the people. Keeping in mind that a constitution is not intended to provide merely for the exigencies of a few years but is
to endure through generations for as long as it remains unaltered by the people as ultimate sovereign, a constitution should be
construed in the light of what actually is a continuing instrument to govern not only the present but also the unfolding events of the
indefinite future. Although the principles embodied in a constitution remain fixed and unchanged from the time of its adoption, a
constitution must be construed as a dynamic process intended to stand for a great length of time, to be progressive and not static.[8]

To reiterate, Article X of the Constitution, entitled “Local Government,” clearly shows the intention of the Constitution to classify
autonomous regions, such as the ARMM, as local governments. We refer to Section 1 of this Article, which provides:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

The inclusion of autonomous regions in the enumeration of political subdivisions of the State under the heading “Local Government”
indicates quite clearly the constitutional intent to consider autonomous regions as one of the forms of local governments.

That the Constitution mentions only the “national government” and the “local governments,” and does not make a distinction
between the “local government” and the “regional government,” is particularly revealing, betraying as it does the intention of the
framers of the Constitution to consider the autonomous regions not as separate forms of government, but as political units which,
while having more powers and attributes than other local government units, still remain under the category of local governments.
Since autonomous regions are classified as local governments, it follows that elections held in autonomous regions are also
considered as local elections.

The petitioners further argue that even assuming that the Constitution mandates the synchronization of elections, the ARMM
elections are not covered by this mandate since they are regional elections and not local elections.

In construing provisions of the Constitution, the first rule is verba legis, “that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical terms are employed.” [9] Applying this principle to
determine the scope of “local elections,” we refer to the meaning of the word “local,” as understood in its ordinary sense. As
defined in Webster’s Third New International Dictionary Unabridged, “local” refers to something “that primarily serves the needs of
a particular limited district, often a community or minor political subdivision.” Obviously, the ARMM elections, which are held
within the confines of the autonomous region of Muslim Mindanao, fall within this definition.

To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or municipalities is not enough reason to
treat the ARMM regional elections differently from the other local elections. Ubi lex non distinguit nec nos distinguire
debemus. When the law does not distinguish, we must not distinguish. [10]

RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM elections, amend RA No. 9054.

We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM elections;[11] it does not provide the
date for the succeeding regular ARMM elections. In providing for the date of the regular ARMM elections, RA No. 9333 and RA No.
10153 clearly do not amend RA No. 9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date of
the ARMM elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled the gap left in RA No. 9054.

We reiterate our previous observations:

This view – that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative
discretion – finds support in ARMM’s recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First Organic Act – RA No. 6734 – not
only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections, leaving the
date to be fixed in another legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA No.
9012 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or
provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any
plebiscite for ratification.

The Second Organic Act – RA No. 9054 – which lapsed into law on March 31, 2001, provided that the first elections would be held on
the second Monday of September 2001. Thereafter, Congress passed RA No. 9140 to reset the date of the ARMM elections.
Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new
date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve
RA No. 9054. Thereafter, Congress passed RA No. 9333, which further reset the date of the ARMM regional elections. Again, this law
was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM
elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No.
10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No.
9054.[12] (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as regards the date of the subsequent
ARMM elections. In his estimation, it can be implied from the provisions of RA No. 9054 that the succeeding elections are to be held
three years after the date of the first ARMM regional elections.

We find this an erroneous assertion. Well-settled is the rule that the court may not, in the guise of interpretation, enlarge the scope
of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of enactment,
whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion.[13] Courts are not
authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its
attention had been called to the omission.[14] Providing for lapses within the law falls within the exclusive domain of the legislature,
and courts, no matter how well-meaning, have no authority to intrude into this clearly delineated space.

Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no need for RA No. 10153 to comply with the
amendment requirements set forth in Article XVII of RA No. 9054.

Supermajority vote requirement makes RA No. 9054 an irrepealable law

Even assuming that RA No. 10153 amends RA No. 9054, however, we have already established that the supermajority vote
requirement set forth in Section 1, Article XVII of RA No. 9054[15] is unconstitutional for violating the principle that Congress cannot
pass irrepealable laws.

The power of the legislature to make laws includes the power to amend and repeal these laws. Where the legislature, by its own act,
attempts to limit its power to amend or repeal laws, the Court has the duty to strike down such act for interfering with the plenary
powers of Congress. As we explained in Duarte v. Dade:[16]
A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial
jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution
or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained.
Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at
the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent
legislatures or the effect of subsequent legislation upon existing statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve bills by a mere majority vote, provided there is
quorum.[17] In requiring all laws which amend RA No. 9054 to comply with a higher voting requirement than the Constitution
provides (2/3 vote), Congress, which enacted RA No. 9054, clearly violated the very principle which we sought to establish in Duarte.
To reiterate, the act of one legislature is not binding upon, and cannot tie the hands of, future legislatures. [18]

We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting opinion, where he stated: “Section 1, Article
XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and unconstitutionally, taking RA
9054 beyond the reach of Congress’ amendatory powers. One Congress cannot limit or reduce the plenary legislative power of
succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No
law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the
Constitution.”[19]

Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners’ contention that the plebiscite requirement [20] applies to all amendments of RA No. 9054
for being an unreasonable enlargement of the plebiscite requirement set forth in the Constitution.

Section 18, Article X of the Constitution provides that “[t]he creation of the autonomous region shall be effective when approved by
majority of the votes cast by the constituent units in a plebiscite called for the purpose[.]” We interpreted this to mean that only
amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects
specifically mentioned in the Constitution which Congress must provide for in the Organic Act[21] – require ratification through a
plebiscite. We stand by this interpretation.

The petitioners argue that to require all amendments to RA No. 9054 to comply with the plebiscite requirement is to recognize that
sovereignty resides primarily in the people.

While we agree with the petitioners’ underlying premise that sovereignty ultimately resides with the people, we disagree that this
legal reality necessitates compliance with the plebiscite requirement for all amendments to RA No. 9054. For if we were to go by the
petitioners’ interpretation of Section 18, Article X of the Constitution that all amendments to the Organic Act have to undergo the
plebiscite requirement before becoming effective, this would lead to impractical and illogical results – hampering the ARMM’s
progress by impeding Congress from enacting laws that timely address problems as they arise in the region, as well as weighing
down the ARMM government with the costs that unavoidably follow the holding of a plebiscite.

Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the President the power to appoint OICs to take
the place of the elective officials of the ARMM, creates a fundamental change in the basic structure of the government, and thus
requires compliance with the plebiscite requirement embodied in RA No. 9054.

Again, we disagree.

The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:
Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the Office of the Regional
Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to
the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic structure of the ARMM regional government. On the
contrary, this provision clearly preserves the basic structure of the ARMM regional government when it recognizes the offices of the
ARMM regional government and directs the OICs who shall temporarily assume these offices to “perform the functions pertaining to
the said offices.”

Unconstitutionality of the holdover provision

The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA No. 9054, which allows the regional
officials to remain in their positions in a holdover capacity. The petitioners essentially argue that the ARMM regional officials should
be allowed to remain in their respective positions until the May 2013 elections since there is no specific provision in the Constitution
which prohibits regional elective officials from performing their duties in a holdover capacity.

The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms. [emphases ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of Office. The terms of office of the Regional Governor, Regional
Vice Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th
day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The
incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified.

The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers of the Constitution to categorically
set a limitation on the period within which all elective local officials can occupy their offices. We have already established that
elective ARMM officials are also local officials; they are, thus, bound by the three-year term limit prescribed by the Constitution. It,
therefore, becomes irrelevant that the Constitution does not expressly prohibit elective officials from acting in a holdover
capacity. Short of amending the Constitution, Congress has no authority to extend the three-year term limit by inserting a
holdover provision in RA No. 9054. Thus, the term of three years for local officials should stay at three (3) years, as fixed by the
Constitution, and cannot be extended by holdover by Congress.

Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws. One significant difference between
the present case and these past cases[22] is that while these past cases all refer to elective barangay or sangguniang
kabataan officials whose terms of office are not explicitly provided for in the Constitution, the present case refers to local elective
officials - the ARMM Governor, the ARMM Vice Governor, and the members of the Regional Legislative Assembly - whose terms fall
within the three-year term limit set by Section 8, Article X of the Constitution.

Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII
of RA No. 9054), the rule of holdover can only apply as an available option where no express or implied legislative intent to the
contrary exists; it cannot apply where such contrary intent is evident. [23]

Congress, in passing RA No. 10153 and removing the holdover option, has made it clear that it wants to suppress the holdover rule
expressed in RA No. 9054. Congress, in the exercise of its plenary legislative powers, has clearly acted within its discretion when it
deleted the holdover option, and this Court has no authority to question the wisdom of this decision, absent any evidence of
unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this Court, to decide how to fill
the vacancies in the ARMM regional government which arise from the legislature complying with the constitutional mandate of
synchronization.

COMELEC has no authority to hold special elections

Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is sufficiently empowered to set the
date of special elections in the ARMM. To recall, the Constitution has merely empowered the COMELEC to enforce and administer all
laws and regulations relative to the conduct of an election. [24]Although the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone elections to another date, this power is confined to
the specific terms and circumstances provided for in the law. Specifically, this power falls within the narrow confines of the following
provisions:
Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election
paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any
interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard,
shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or
suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the election or failure to elect. [emphases and underscoring
ours]

As we have previously observed in our assailed decision, both Section 5 and Section 6 of BP 881 address instances where elections
have already been scheduled to take place but do not occur or had to be suspended because
of unexpected and unforeseen circumstances, such as violence, fraud, terrorism, and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate of synchronization of
national and local elections. Obviously, this does not fall under any of the circumstances contemplated by Section 5 or Section 6 of
BP 881.

More importantly, RA No. 10153 has already fixed the date for the next ARMM elections and the COMELEC has no authority to set a
different election date.

Even assuming that the COMELEC has the authority to hold special elections, and this Court can compel the COMELEC to do so, there
is still the problem of having to shorten the terms of the newly elected officials in order to synchronize the ARMM elections with the
May 2013 national and local elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as it
does to an amendment of Section 8, Article X of the Constitution, which limits the term of local officials to three years.

President’s authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the President’s power to appoint pertains only to appointive positions and cannot
extend to positions held by elective officials.

The power to appoint has traditionally been recognized as executive in nature. [25] Section 16, Article VII of the Constitution describes
in broad strokes the extent of this power, thus:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers
of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions, or boards. [emphasis ours]
The 1935 Constitution contained a provision similar to the one quoted above. Section 10(3), Article VII of the 1935 Constitution
provides:
(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive
departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom
he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President
alone, in the courts, or in the heads of departments. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its counterpart in the 1935 Constitution is the sentence
construction; while in the 1935 Constitution, the various appointments the President can make are enumerated in a single sentence,
the 1987 Constitution enumerates the various appointments the President is empowered to make and divides the enumeration in
two sentences. The change in style is significant; in providing for this change, the framers of the 1987 Constitution clearly sought to
make a distinction between the first group of presidential appointments and the second group of presidential appointments, as
made evident in the following exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after “captain” and x x x delete “and all” and substitute it with HE
SHALL ALSO APPOINT ANY.

MR. REGALADO. Madam President, the Committee accepts the proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the Commission on Appointments. [26]

The first group of presidential appointments, specified as the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the Armed Forces, and other officers whose appointments are vested in the President by the
Constitution, pertains to the appointive officials who have to be confirmed by the Commission on Appointments.

The second group of officials the President can appoint are “all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint.” [27] The second sentence acts as the
“catch-all provision” for the President’s appointment power, in recognition of the fact that the power to appoint is essentially
executive in nature.[28] The wide latitude given to the President to appoint is further demonstrated by the recognition of the
President’s power to appoint officials whose appointments are not even provided for by law. In other words, where there are
offices which have to be filled, but the law does not provide the process for filling them, the Constitution recognizes the power of
the President to fill the office by appointment.

Any limitation on or qualification to the exercise of the President’s appointment power should be strictly construed and must be
clearly stated in order to be recognized.[29] Given that the President derives his power to appoint OICs in the ARMM regional
government from law, it falls under the classification of presidential appointments covered by the second sentence of Section 16,
Article VII of the Constitution; the President’s appointment power thus rests on clear constitutional basis.

The petitioners also jointly assert that RA No. 10153, in granting the President the power to appoint OICs in elective positions,
violates Section 16, Article X of the Constitution,[30] which merely grants the President the power of supervision over autonomous
regions.

This is an overly restrictive interpretation of the President’s appointment power. There is no incompatibility between the President’s
power of supervision over local governments and autonomous regions, and the power granted to the President, within the specific
confines of RA No. 10153, to appoint OICs.

The power of supervision is defined as “the power of a superior officer to see to it that lower officers perform their functions in
accordance with law.”[31] This is distinguished from the power of control or “the power of an officer to alter or modify or set aside
what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter.”[32]

The petitioners’ apprehension regarding the President’s alleged power of control over the OICs is rooted in their belief that the
President’s appointment power includes the power to remove these officials at will. In this way, the petitioners foresee that the
appointed OICs will be beholden to the President, and act as representatives of the President and not of the people.

Section 3 of RA No. 10153 expressly contradicts the petitioners’ supposition. The provision states:
Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the Office of the Regional
Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to
the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs for the offices of the Governor, Vice Governor and
members of the Regional Legislative Assembly, these same officials will remain in office until they are replaced by the duly elected
officials in the May 2013 elections. Nothing in this provision even hints that the President has the power to recall the appointments
he already made. Clearly, the petitioners’ fears in this regard are more apparent than real.

RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within the context it was enacted in. In
the first place, Congress enacted RA No. 10153 primarily to heed the constitutional mandate to synchronize the ARMM regional
elections with the national and local elections. To do this, Congress had to postpone the scheduled ARMM elections for another
date, leaving it with the problem of how to provide the ARMM with governance in the intervening period, between the expiration
of the term of those elected in August 2008 and the assumption to office – twenty-one (21) months away – of those who will win in
the synchronized elections on May 13, 2013.

In our assailed Decision, we already identified the three possible solutions open to Congress to address the problem created by
synchronization – (a) allow the incumbent officials to remain in office after the expiration of their terms in a holdover capacity; (b)
call for special elections to be held, and shorten the terms of those to be elected so the next ARMM regional elections can be held
on May 13, 2013; or (c) recognize that the President, in the exercise of his appointment powers and in line with his power of
supervision over the ARMM, can appoint interim OICs to hold the vacated positions in the ARMM regional government upon the
expiration of their terms. We have already established the unconstitutionality of the first two options, leaving us to consider the last
available option.

In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment that synchronization requires.
Given the context, we have to judge RA No. 10153 by the standard of reasonableness in responding to the challenges brought about
by synchronizing the ARMM elections with the national and local elections. In other words, “given the plain unconstitutionality of
providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected
ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?”[33]

We admit that synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the
community’s choice of leaders. However, we have to keep in mind that the adoption of this measure is a matter of necessity in order
to comply with a mandate that the Constitution itself has set out for us. Moreover, the implementation of the provisions of RA No.
10153 as an interim measure is comparable to the interim measures traditionally practiced when, for instance, the President
appoints officials holding elective offices upon the creation of new local government units.

The grant to the President of the power to appoint OICs in place of the elective members of the Regional Legislative Assembly is
neither novel nor innovative. The power granted to the President, via RA No. 10153, to appoint members of the Regional Legislative
Assembly is comparable to the power granted by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for any
cause in the Regional Legislative Assembly (then called the Sangguniang Pampook).[34]

Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21, 2011, question the propriety of the
appointment by the President of Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of the ARMM. They
argue that since our previous decision was based on a close vote of 8-7, and given the numerous motions for reconsideration filed by
the parties, the President, in recognition of the principle of judicial courtesy, should have refrained from implementing our decision
until we have ruled with finality on this case.

We find the petitioners’ reasoning specious.

Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower courts in instances where, even
if there is no writ of preliminary injunction or TRO issued by a higher court, it would be proper for a lower court to suspend its
proceedings for practical and ethical considerations.[35] In other words, the principle of “judicial courtesy” applies where there is a
strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of
the proceedings in the lower court or court of origin.[36] Consequently, this principle cannot be applied to the President, who
represents a co-equal branch of government. To suggest otherwise would be to disregard the principle of separation of powers, on
which our whole system of government is founded upon.

Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot, have the effect of making our
ruling any less effective or binding. Regardless of how close the voting is, so long as there is concurrence of the majority of the
members of the en banc who actually took part in the deliberations of the case, [37] a decision garnering only 8 votes out of 15
members is still a decision of the Supreme Court en banc and must be respected as such. The petitioners are, therefore, not in any
position to speculate that, based on the voting, “the probability exists that their motion for reconsideration may be granted.”[38]

Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory Resolution, argues that since motions for
reconsideration were filed by the aggrieved parties challenging our October 18, 2011 decision in the present case, the TRO we
initially issued on September 13, 2011 should remain subsisting and effective. He further argues that any attempt by the Executive
to implement our October 18, 2011 decision pending resolution of the motions for reconsideration “borders on disrespect if not
outright insolence”[39] to this Court.

In support of this theory, the petitioner cites Samad v. COMELEC,[40] where the Court held that while it had already issued a decision
lifting the TRO, the lifting of the TRO is not yet final and executory, and can also be the subject of a motion for reconsideration. The
petitioner also cites the minute resolution issued by the Court in Tolentino v. Secretary of Finance,[41] where the Court reproached
the Commissioner of the Bureau of Internal Revenue for manifesting its intention to implement the decision of the Court, noting
that the Court had not yet lifted the TRO previously issued. [42]

We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion for reconsideration filed to assail our
decision. It does not follow, however, that the TRO remains effective until after we have issued a final and executory decision,
especially considering the clear wording of the dispositive portion of our October 18, 2011 decision, which states:
WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit,
and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of
September 13, 2011. No costs.[43] (emphases ours)

In this regard, we note an important distinction between Tolentino and the present case. While it may be true that Tolentino and the
present case are similar in that, in both cases, the petitions assailing the challenged laws were dismissed by the Court, an
examination of the dispositive portion of the decision in Tolentinoreveals that the Court did not categorically lift the TRO. In sharp
contrast, in the present case, we expressly lifted the TRO issued on September 13, 2011. There is, therefore, no legal impediment to
prevent the President from exercising his authority to appoint an acting ARMM Governor and Vice Governor as specifically provided
for in RA No. 10153.
Conclusion

As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282 presents in his motion, that our Decision
has virtually given the President the power and authority to appoint 672,416 OICs in the event that the elections of barangay
and Sangguniang Kabataan officials are postponed or cancelled.

We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal circumstances which led to the enactment of RA No.
10153. RA No. 10153 was passed in order to synchronize the ARMM elections with the national and local elections. In the course of
synchronizing the ARMM elections with the national and local elections, Congress had to grant the President the power to appoint
OICs in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective officials is legally impermissible; and (b)
Congress cannot call for special elections and shorten the terms of elective local officials for less than three years.

Unlike local officials, as the Constitution does not prescribe a term limit for barangay and Sangguniang Kabataan officials, there is
no legal proscription which prevents these specific government officials from continuing in a holdover capacity should some
exigency require the postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither legal nor
factual basis to stand on.

For the foregoing reasons, we deny the petitioners’ motions for reconsideration.

WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration for lack of merit and UPHOLD the
constitutionality of RA No. 10153.

SO ORDERED.
 EN BANC
[ G.R. No. 191890, December 04, 2012 ]
EVALYN I. FETALINO AND AMADO M. CALDERON, PETITIONERS, MANUEL A. BARCELONA, JR., PETITIONER-INTERVENOR, VS.
COMMISSION ELECTIONS, ON RESPONDENT.

DECISION
BRION, J.:
Before us is a Petition for Certiorari, Mandamus and Prohibition with Application for Writ of Preliminary Injunction and/or
Temporary Restraining Order,[1] seeking to nullify and enjoin the implementation of Commission on Elections (Comelec) Resolution
No. 8808 issued on March 30, 2010.[2] Republic Act (R.A.) No. 1568, as amended,[3] extends a five-year lump sum gratuity to the
chairman or any member of the Comelec upon retirement, after completion of the term of office;incapacity; death;
and resignation after reaching 60 years of age but before expiration of the term of office. The Comelec en banc determined that
former Comelec Commissioners Evalyn I. Fetalino[4] and Amado M. Calderon[5] (petitioners) - whose ad interim appointments were
not acted upon by the Commission on Appointments (CA) and, who were subsequently, not reappointed — are not entitled to the
five-year lump sum gratuity because they did not complete in full the seven-year term of office.
The Antecedent Facts

On February 10, 1998, President Fidel V. Ramos extended an interim appointment to the petitioners as Comelec Commissioners,
each for a term of seven (7) years, pursuant to Section 2, Article IX-D of the 1987 Constitution.[6] Eleven days later (or on February
21, 1998), Pres. Ramos renewed the petitioners’ ad interimappointments for the same position. Congress, however, adjourned in
May 1998 before the CA could act on their appointments. The constitutional ban on presidential appointments later took effect and
the petitioners were no longer re-appointed as Comelec Commissioners.[7] Thus, the petitioners merely served as Comelec
Commissioners for more than four months, or from February 16, 1998 to June 30, 1998.[8]

Subsequently, on March 15, 2005, the petitioners applied for their retirement benefits and monthly pension with the Comelec,
pursuant to R.A. No. 1568.[9] The Comelec initially approved the petitioners’ claims pursuant to its Resolution No. 06-1369[10] dated
December 11, 2006 whose dispositive portion reads:
[T]he Commission RESOLVED, as it hereby RESOLVES, to approve the recommendation of Director Alioden D. Dalaig, Law
Department, to grant the request of former Comelec Commissioners Evalyn Fetalino and Amado Calderon for the payment of their
retirement benefits, subject to release of funds for the purpose by the Department of Budget and Management. [11]

On February 6, 2007, the Comelec issued Resolution No. 07-0202 granting the petitioners a pro-rated gratuity and
pension.[12] Subsequently, on October 5, 2007, the petitioners asked for a re-computation of their retirement pay on the principal
ground that R.A. No. 1568,[13] does not cover a pro-rated computation of retirement pay. In response, the Comelec issued a
resolution referring the matter to its Finance Services Department for comment and recommendation. [14] On July 14, 2009, the
Comelec issued another resolution referring the same matter to its Law Department for study and recommendation. [15]

In the presently assailed Resolution No. 8808[16] dated March 30, 2010, the Comelec, on the basis of the Law Department’s study,
completely disapproved the petitioners’ claim for a lump sum benefit under R.A. No. 1568. The Comelec reasoned out that:
Of these four (4) modes by which the Chairman or a Commissioner shall be entitled to lump sum benefit, only the first instance
(completion of term) is pertinent to the issue we have formulated above. It is clear that the non-confirmation and non-renewal of
appointment is not a case of resignation or incapacity or death. The question rather is: Can it be considered as retirement from
service for having completed one’s term of office?
xxxx

The full term of the Chairman and the Commissioners is seven (7) years. When there has been a partial service, what remains is
called the “unexpired term.” The partial service is usually called tenure. There is no doubt in the distinction between a term and
tenure. Tenure is necessarily variable while term is always fixed. When the law, in this case, RA 1568 refers to completion of term of
office, it can only mean finishing up to the end of the seven year term. By completion of term, the law could not have meant partial
service or a variable tenure that does not reach the end. It could not have meant, the “expiration of term” of the Commissioner
whose appointment lapses by reason of non-confirmation of appointment by the Commission on Appointments and non-renewal
thereof by the President. It is rightly called expiration of term but note: it is not completion of term. RA 1568 requires ‘having
completed his term of office’ for the Commissioner to be entitled to the benefits.

Therefore, one whose ad interim appointment expires cannot be said to have completed his term of office so as to fall under the
provisions of Section 1 of RA 1568 that would entitle him to a lump sum benefit of five (5) years salary. [17] (emphasis, italics and
underscores ours)

On this basis, the Comelec ruled on the matter, as follows:

Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT the study of the Law
Department on the payment of retirement benefits to members of the Commission.

Consequently, the following former Chairman and Commissioners of this Commission whose appointments expired by reason of
non- approval by Commission on Appointments and non-renewal by the President are not entitled to a lump sum benefit under
Republic Act 1528 (sic):
Name Position Date of Service
1. Alfredo Benipayo, Jr. Chairman Feb. 16, 2001 to June 5, 2002
2. Evalyn Fetalino Commissioner Feb. 16, 1998 to June 30, 1998
3. Amado Calderon Commissioner Feb. 16, 1998 to June 30, 1998
4. Virgilio Garciliano Commissioner Feb. 12, 2004 to June 10, 2005
5. Manuel Barcelona, Jr. Commissioner Feb. 12, 2004 to June 10, 2005
6. Moslemen Macarambon Commissioner Nov[.] 05, 2007 to Oct. 10, 2008
7. Leonardo Leonida Commissioner July 03, 2008 to June 26, 2009

This resolution shall also apply to all requests of former COMELEC Chairmen and Commissioners similarly situated. All previous
resolutions which are inconsistent herewith are hereby AMENDED or REVOKED accordingly.

Let the Finance Services and Personnel Departments implement this resolution. [18] (emphasis ours)

The Petitions

The petitioners sought the nullification of Comelec Resolution No. 8808 via a petition for certiorari under Rule 65 of the Rules of
Court. Petitioner-intervenor Manuel A. Barcelona, Jr. later joined the petitioners in questioning the assailed resolution. Like the
petitioners, Barcelona did not complete the full seven-year term as Comelec Commissioner since he served only from February 12,
2004 to July 10, 2005. The petitioners and Barcelona commonly argue that:

(1) the non-renewal of their ad interim appointments by the CA until Congress already adjourned qualifies as retirement under the
law and entitles them to the full five-year lump sum gratuity;

(2) Resolution No. 06-1369 that initially granted the five-year lump sum gratuity is already final and executory and cannot be
modified by the Comelec; and

(3) they now have a vested right over the full retirement benefits provided by RA No. 1568 in view of the finality of Resolution No.
06-1369.[19]

In the main, both the petitioners and Barcelona pray for a liberal interpretation of Section 1 of R.A. No. 1568. They submit that the
involuntary termination of theirad interim appointments as Comelec Commissioners should be deemed by this Court as a retirement
from the service. Barcelona, in support of his plea for liberal construction, specifically cites the case of Ortiz v. COMELEC.[20] The
Court ruled in this cited case that equity and justice demand that the involuntary curtailment of Mario D. Ortiz’s term be deemed a
completion of his term of office so that he should be considered retired from the service.

In addition, the petitioners also bewail the lack of notice and hearing in the issuance of Comelec Resolution No. 8808. Barcelona also
assails the discontinuance of his monthly pension on the basis of the assailed Comelec issuance.[21]
The Case for the Respondents

On July 22, 2010, the Comelec filed its Comment[22] through the Office of the Solicitor General. The Comelec prays for the dismissal
of the petition on the grounds outlined below:

First, it submits that the petitioners’ reliance on Section 13, Rule 18 of the Comelec Rules of Procedure to show that Resolution No.
06-1369 has attained finality is misplaced as this resolution is not the final decision contemplated by the Rules. It also argues that
estoppel does not lie against the Comelec since the erroneous application and enforcement of the law by public officers do not
estop the Government from making a subsequent correction of its errors. [23]

Second, the Comelec reiterates that the petitioners are not entitled to the lump sum gratuity, considering that they cannot be
considered as officials who retired after completing their term of office. It emphasizes that R.A. No. 1568 refers to the completion of
the term of office, not to partial service or to a variable tenure that does not reach its end, as in the case of the petitioners. The
Comelec also draws the Court’s attention to the case of Matibag v. Benipayo[24] where the Court categorically ruled that an ad
interim appointment that lapsed by inaction of the Commission on Appointments does not constitute a term of office. [25]

Third, it argues that the petitioners do not have any vested right on their retirement benefits considering that the retirements
benefits afforded by R.A. No. 1568 are purely gratuitous in nature; they are not similar to pension plans where employee
participation is mandatory so that they acquire vested rights in the pension as part of their compensation. Without such vested
rights, the Comelec concludes that the petitioners were not deprived of their property without due process of law. [26]
The Court’s Ruling

We DISMISS the petition and DENY Barcelona’s petition for intervention.

Preliminary Considerations

R.A. No. 1568 provides two types of retirement benefits for a Comelec Chairperson or Member: a gratuity or five-year lump sum,
and an annuity or a lifetime monthly pension.[27] Our review of the petitions, in particular, Barcelona’s petition for intervention,
indicates that he merely questions the discontinuance of his monthly pension on the basis of Comelec Resolution No. 8808. [28] As the
assailed resolution, by its plain terms (cited above), only pertains to the lump sum benefit afforded by R.A. No. 1568, it appears that
Barcelona’s petition for intervention is misdirected. We note, too, that Barcelona has not substantiated his bare claim that the
Comelec discontinued the payment of his monthly pension on the basis of the assailed Resolution.

To put the case in its proper perspective, the task now before us is to determine whether the petitioners are entitled to the full five-
year lump sum gratuity provided for by R.A. No. 1568. We conclude under our discussion below that they are not so entitled as they
did not comply with the conditions required by law.
The petitioners are not entitled to the
lump sum gratuity under Section 1 of
R.A. No. 1568, as amended

That the petitioners failed to meet conditions of the applicable retirement law — Section 1 of R.A. No. 1568[29] — is beyond dispute.
The law provides:
Sec. 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having
completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns
at any time after reaching the age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump
sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was
receiving at the time of retirement, incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has
rendered not less than twenty years of service in the government; And, provided, further, That he shall receive an annuity payable
monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement,
incapacity or resignation. [italics supplied]

To be entitled to the five-year lump sum gratuity under Section 1 of R.A. No. 1568, any of the following events must transpire:

(1) Retirement from the service for having completed the term of office;

(2) Incapacity to discharge the duties of their office; (3) Death while in the service; and

(4) Resignation after reaching the age of sixty (60) years but before the expiration of the term of office. In addition, the officer
should have rendered not less than twenty years of service in the government at the time of retirement.

Death during the service obviously does not need to be considered in the present case, thus leaving retirement,
incapacity and resignation as the event that must transpire in order to be entitled to the lump sum gratuity.

We note that the termination of the petitioners’ ad interim appointments could hardly be considered as incapacity since it was not
the result of any disability that rendered them incapable of performing the duties of a Commissioner. Thus, incapacity is likewise
effectively removed from active consideration.

“Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right
to it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of relinquishment.” [30] In this sense, resignation likewise does not appear applicable
as a ground because the petitioners did not voluntarily relinquish their position as Commissioners; their termination was merely a
consequence of the adjournment of Congress without action by the CA on their ad interim appointments.

This eliminative process only leaves the question of whether the termination of the petitioners’ ad interim appointments amounted
to retirement from the service after completion of the term of office. We emphasize at this point that the right to retirement
benefits accrues only when two conditions are met: first, when the conditions imposed by the applicable law – in this case, R.A. No.
1568 — are fulfilled; and second, when an actual retirement takes place.[31] This Court has repeatedly emphasized that retirement
entails compliance with certain age and service requirements specified by law and jurisprudence, and takes effect by operation of
law.[32]

Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman or any Member of the Comelec who has retired
from the service after having completed his term of office. The petitioners obviously did not retire under R.A. No. 1568, as amended,
since they never completed the full seven-year term of office prescribed by Section 2, Article IX-D of the 1987 Constitution; they
served as Comelec Commissioners for barely four months, i.e., from February 16, 1998 to June 30, 1998. In the recent case of Re:
Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No.
9946,[33] where the Court did not allow Judge Macarambon to retire under R.A. No. 910 because he did not comply with the age and
service requirements of the law, the Court emphasized:
Strict compliance with the age and service requirements under the law is the rule and the grant of exception remains to be on a
case to case basis. We have ruled that the Court allows seeming exceptions to these fixed rules for certain judges and justices only
and whenever there are ample reasons to grant such exception. (emphasis ours; citations omitted)

More importantly, we agree with the Solicitor General that the petitioners’ service, if any, could only amount to tenure in office and
not to the term of officecontemplated by Section 1 of R.A. No. 1568. Tenure and term of office have well-defined meanings in law
and jurisprudence. As early as 1946, the Court, inTopacio Nueno v. Angeles,[34] provided clear distinctions between these concepts in
this wise:
The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the
office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the
power of the incumbent. There is no principle, law or doctrine by which the term of an office may be extended by reason of war.
[emphasis ours]

This is the ruling that has been followed since then and is the settled jurisprudence on these concepts. [35]

While we characterized an ad interim appointment in Matibag v. Benipayo[36] “as a permanent appointment that takes effect
immediately and can no longer be withdrawn by the President once the appointee has qualified into office,” we have also positively
ruled in that case that “an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not
constitute a term of office.”[37] We consequently ruled:
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of
office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired
term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of
office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming
power of the Commission on Appointments.[38] (emphasis ours; italics supplied)

Based on these considerations, we conclude that the petitioners can never be considered to have retired from the service not only
because they did not complete the full term, but, more importantly, because they did not serve a “term of office” as required by
Section 1 of R.A. No. 1568, as amended.

Ortiz v. COMELEC cannot be

applied to the present case

We are not unmindful of the Court’s ruling in Ortiz v. COMELEC[39] which Barcelona cites as basis for his claim of retirement benefits
despite the fact that — like the petitioners — he did not complete the full term of his office.

In that case, the petitioner was appointed as Comelec Commissioner, for a term expiring on May 17, 1992, by then President
Ferdinand E. Marcos, and took his oath of office on July 30, 1985. When President Corazon Aquino assumed the Presidency and
following the lead of the Justices of the Supreme Court, Ortiz — together with the other Comelec Commissioners — tendered his
courtesy resignation on March 5, 1986. On July 21, 1986, President Aquino accepted their resignations effective immediately.
Thereafter, Ortiz applied for retirement benefits under R.A. No. 1568, which application the Comelec denied. The Court, however,
reversed the Comelec and held that “[t]he curtailment of [Ortiz’s] term not being attributable to any voluntary act on the part of the
petitioner, equity and justice demand that he should be deemed to have completed his term xxx. [That he] should be placed in the
same category as that of an official holding a primarily confidential position whose tenure ends upon his superior’s loss of
confidence in him.” Thus, as “he is deemed to have completed his term of office, [Ortiz] should be considered retired from the
service.”[40]

A close reading of Ortiz reveals that it does not have the same fact situation as the present case and is thus not decisive of the
present controversy. We note that the impact of the principle of stare decisis that Barcelona cited as basis is limited; specific judicial
decisions are binding only on the parties to the case and on future parties with similar or identical factual
situations.[41] Significantly, the factual situation in Ortiz is totally different so that its ruling cannot simply be bodily lifted and applied
arbitrarily to the present case.

First, in Ortiz, Ortiz’s appointment was a regular appointment made by then President Marcos, while the petitioners were appointed
by President Ramos ad interim or during the recess of Congress.

Second, Ortiz’s appointment was made under the 1973 Constitution which did not require the concurrence of the CA. Notably, the
1973 Constitution abolished the CA and did not provide for an executive limit on the appointing authority of the President. In the
present case, the petitioners’ ad interim appointment was made under the 1987 Constitution which mandated that an appointment
shall be effective only until disapproval by the CA or until the next adjournment of Congress.

Third, in Ortiz, the Court addressed the issue of whether a constitutional official, whose “courtesy resignation” had been accepted by
the President of the Philippines during the effectivity of the Freedom Constitution, may be entitled to retirement benefits under R.A.
No. 1568. In the present case, the issue is whether the termination of the petitioners’ ad interim appointments entitles them to the
full five-year lump sum gratuity provided for by R.A. No. 1568.

No occasion for liberal construction

since Section 1 of R.A. No. 1568, as
amended, is clear and unambiguous

The petitioners’ appeal to liberal construction of Section 1 of R.A. No. 1568 is misplaced since the law is clear and unambiguous. We
emphasize that the primary modality of addressing the present case is to look into the provisions of the retirement law itself. Guided
by the rules of statutory construction in this consideration, we find that the language of the retirement law is clear and unequivocal;
no room for construction or interpretation exists, only the application of the letter of the law.

The application of the clear letter of the retirement law in this case is supported by jurisprudence. As early as 1981, in the case of In
Re: Claim of CAR Judge Noel,[42] the Court strictly adhered to the provisions of R.A. No. 910 and did not allow the judge’s claim of
monthly pension and annuity under the aforementioned law, considering that his length of government service fell short of the
minimum requirements.

Similarly, in Re: Judge Alex Z. Reyes,[43] the Court dismissed CTA Judge Reyes’ invocation of the doctrine of liberal construction of
retirement laws to justify his request that the last step increment of his salary grade be used in the computation of his retirement
pay and terminal leave benefits, and held:
In Borromeo, the court had occasion to say: "It is axiomatic that retirement laws are liberally construed and administered in favor of
the persons intended to be benefited. All doubts as to the intent of the law should be resolved in favor of the retiree to achieve its
humanitarian purposes." Such interpretation in favor of the retiree is unfortunately not called for nor warranted, where the clear
intent of the applicable law and rules are demonstrably against the petitioner's claim. (Paredes v. City of Manila, G.R. No. 88879,
March 21, 1991). Section 4 is explicit and categorical in its prohibition and[,] unfortunately for Judge Reyes[,] applies squarely to the
instant case.[44] (emphasis ours; italics supplied)

Finally, in Gov’t Service Insurance System v. Civil Service Commission,[45] the Court was asked to resolve whether government service
rendered on a per diembasis is creditable for computing the length of service for retirement purposes. In disregarding the
petitioners’ plea for liberal construction, the Court held:
The law is very clear in its intent to exclude per diem in the definition of "compensation." Originally, per diem was not among those
excluded in the definition of compensation (See Section 1(c) of C.A. No. 186), not until the passage of the amending laws which
redefined it to exclude per diem.

The law not only defines the word "compensation," but it also distinguishes it from other forms of remunerations. Such distinction is
significant not only for purposes of computing the contribution of the employers and employees to the GSIS but also for computing
the employees' service record and benefits.
xxxx

Private respondents both claim that retirement laws must be liberally interpreted in favor of the retirees. However, the doctrine of
liberal construction cannot be applied in the instant petitions, where the law invoked is clear, unequivocal and leaves no room for
interpretation or construction. Moreover, to accommodate private respondents' plea will contravene the purpose for which the law
was enacted, and will defeat the ends which it sought to attain (cf. Re: Judge Alex Z. Reyes, 216 SCRA 720 [1992]).[46] [italics supplied;
emphasis ours]

No compelling reasons exist to

warrant the liberal application
of Section 1 of R.A. No. 1568,
as amended, to the present case

We find no compelling legal or factual reasons for the application of the Court’s liberality in the interpretation of retirement laws to
the present case. The discretionary power of the Court to exercise the liberal application of retirement laws is not limitless; its
exercise of liberality is on a case-to- case basis and only after a consideration of the factual circumstances that justify the grant of an
exception. The recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as
amended by Republic Act No. 9946[47] fully explained how a liberal approach in the application of retirement laws should be
construed, viz:
The rule is that retirement laws are construed liberally in favor of the retiring employee. However, when in the interest of liberal
construction the Court allows seeming exceptions to fixed rules for certain retired Judges or Justices, there are ample reasons
behind each grant of an exception. The crediting of accumulated leaves to make up for lack of required age or length of service is
not done indiscriminately. It is always on a case to case basis.

In some instances, the lacking element—such as the time to reach an age limit or comply with length of service is de minimis. It
could be that the amount of accumulated leave credits is tremendous in comparison to the lacking period of time.

More important, there must be present an essential factor before an application under the Plana or Britanico rulings may be
granted. The Court allows a making up or compensating for lack of required age or service only if satisfied that the career of the
retiree was marked by competence, integrity, and dedication to the public service; it was only a bowing to policy considerations and
an acceptance of the realities of political will which brought him or her to premature retirement. (emphases and italics ours; citation
omitted)

In the present case, as previously mentioned, Ortiz cannot be used as authority to justify a liberal application of Section 1 of R.A. No.
1568, as amended not only because it is not on all fours with the present case; more importantly, the Court in Ortiz had ample
reasons, based on the unique factual circumstances of the case, to grant an exception to the service requirements of the law.
In Ortiz, the Court took note of the involuntariness of Ortiz’s “courtesy resignation,” as well as the peculiar circumstances obtaining
at that time President Aquino issued Proclamation No. 1 calling for the courtesy resignation of all appointive officials, viz:
From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We
cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the disposal of
the President. He did not categorically state therein that he was unconditionally giving up his position. It should be remembered that
said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25, 1986 when she called on all
appointive public officials to tender their "courtesy resignation" as a "first step to restore confidence in public administration.” [48]

In stark contrast, no such peculiar circumstances obtain in the present case.

Finally, in the absence of any basis for liberal interpretation, the Court would be engaged in judicial legislation if we grant the
petitioners’ plea. We cannot overemphasize that the policy of liberal construction cannot and should not be to the point of engaging
in judicial legislation — an act that the Constitution absolutely forbids this Court to do. In the oft-cited case of Tanada v.
Yulo,[49] Justice George A. Malcolm cautioned against judicial legislation and warned against liberal construction being used as a
license to legislate and not to simply interpret,[50] thus:
Counsel in effect urges us to adopt a liberal construction of the statute. That in this instance, as in the past, we aim to do. But
counsel in his memorandum concedes "that the language of the proviso in question is somewhat defective and does not clearly
convey the legislative intent", and at the hearing in response to questions was finally forced to admit that what the Government
desired was for the court to insert words and phrases in the law in order to supply an intention for the legislature. That we cannot
do. By liberal construction of statutes, courts from the language used, the subject matter, and the purposes of those framing them
are able to find out their true meaning. There is a sharp distinction, however, between construction of this nature and the act of a
court in engrafting upon a law something that has been omitted which someone believes ought to have been embraced. The former
is liberal construction and is a legitimate exercise of judicial power. The latter is judicial legislation forbidden by the tripartite division
of powers among the three departments of government, the executive, the legislative, and the judicial. [51]

In the present case, Section 1 of R.A. No. 1568, by its plain terms, is clear that retirement entails the completion of the term of
office. To construe the term “retirement” in Section 1 of R.A. No. 1568 to include termination of an ad interim appointment is to
read into the clear words of the law exemptions that its literal wording does not support; to depart from the meaning expressed by
the words of R.A. No. 1568 is to alter the law and to legislate, and not to interpret. We would thereby violate the time-honored rule
on the constitutional separation of powers. The words of Justice E. Finley Johnson in the early case of Nicolas v. Alberto[52]still ring
true today, viz.:
The courts have no legislative powers. In the interpretation and construction of statutes their sole function is to determine, and,
within the constitutional limits of the legislative power, to give effect to the intention of the legislature. The courts cannot read into
a statute something which is not within the manifest intention of the legislature as gathered from the statute itself. To depart from
the meaning expressed by the words of a statute, is to alter the statute, to legislate and not to interpret. The responsibility for the
justice or wisdom of legislation rests with the legislature, and it is the province of the courts to construe, not to make the laws.

To reiterate, in light of the express and clear terms of the law, the basic rule of statutory construction should therefore apply:
“legislative intent is to be determined from the language employed, and where there is no ambiguity in the words, there is no room
for construction.”[53]

The Comelec did not violate the rule

on finality of judgments

Petitioners argue that Resolution No. 06-1369, which initially granted them a five-year lump sum gratuity, attained finality thirty (30)
days after its promulgation, pursuant to Section 13, Rule 18 of the Comelec Rules of Procedure, and, thus, can no longer be modified
by the Comelec.

We cannot agree with this position. Section 13, Rule 18 of the Comelec Rules of Procedure reads:
Sec. 13. Finality of Decisions or Resolutions. –

a. In ordinary actions, special proceedings, provisional remedies and special reliefs a decision or resolution of the Commission en
banc shall become final and executory after thirty (30) days from its promulgation.

A simple reading of this provision shows that it only applies to ordinary actions, special proceedings, provisional remedies and
special reliefs. Under Section 5, Rule 1 of the Comelec Rules of Procedures, ordinary actions refer to election protests, quo
warranto, and appeals from decisions of courts in election protest cases;special proceedings refer to annulment of permanent list of
voters, registration of political parties and accreditation of citizens’ arms of the Commission;provisional remedies refer to injunction
and/or restraining order; and special reliefs refer to certiorari, prohibition, mandamus and contempt. Thus, it is clear that the
proceedings that precipitated the issuance of Resolution No. 06-1369 do not fall within the coverage of the actions and proceedings
under Section 13, Rule 18 of the Comelec Rules of Procedure. Thus, the Comelec did not violate its own rule on finality of judgments.

No denial of due process

We also find no merit in the petitioners’ contention that that they were denied due process of law when the Comelec issued
Resolution No. 8808 without affording them the benefit of a notice and hearing. We have held in the past that “[t]he essence of due
process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an
opportunity to seek a reconsideration of the action or ruling complained of. [Thus, a] formal or trial-type hearing is not at all times
and in all instances essential. The requirements are satisfied where the parties are given fair and reasonable opportunity to explain
their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing.” [54] In Bautista v. Commission on
Elections,[55] we emphasized:
In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only refer to the right to present
verbal arguments in court. A party may also be heard through his pleadings. Where opportunity to be heard is accorded either
through oral arguments or pleadings, there is no denial of procedural due process. As reiterated in National Semiconductor (HK)
Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard, or as
applied to administrative proceedings, an opportunity to explain one's side. Hence, inNavarro III vs. Damaso (246 SCRA 260 [1995]),
we held that a formal or trial-type hearing is not at all times and not in all instances essential. [56](italics supplied)

Thus, “[a] party cannot successfully invoke deprivation of due process if he was accorded the opportunity of a hearing, through
either oral arguments or pleadings. There is no denial of due process when a party is given an opportunity through his
pleadings.”[57] In the present case, the petitioners cannot claim deprivation of due process because they actively participated in the
Comelec proceedings that sought for payment of their retirement benefits under R.A. No. 1568. The records clearly show that the
issuance of the assailed Comelec resolution was precipitated by the petitioners’ application for retirement benefits with the
Comelec. Significantly, the petitioners were given ample opportunity to present and explain their respective positions when they
sought a re-computation of the initial pro-rated retirement benefits that were granted to them by the Comelec. Under these facts,
no violation of the right to due process of law took place.

No vested rights over retirement benefits

As a last point, we agree with the Solicitor General that the retirement benefits granted to the petitioners under Section 1 of R.A.
No. 1568 are purely gratuitous in nature; thus, they have no vested right over these benefits. [58] Retirement benefits as provided
under R.A. No. 1568 must be distinguished from a pension which is a form of deferred compensation for services performed; in a
pension, employee participation is mandatory, thus, employees acquire contractual or vested rights over the pension as part of their
compensation.[59] In the absence of any vested right to the R.A. No. 1568 retirement benefits, the petitioners' due process argument
must perforce fail.

WHEREFORE, premises considered, we hereby DISMISS the petition for certiorari filed by petitioners Evalyn I. Fetalino and Amado
M. Calderon for lack of merit. We likewise DENY Manuel A. Barcelona, Jr.'s petition for intervention tor lack of merit. No costs.

SO ORDERED.
 EN BANC
[ G. R. No. 191002, March 17, 2010 ]
ARTURO M. DE CASTRO, PETITIONER, VS. 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 andmandamus, 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 review Valenzuela, 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
nominations without 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 thePhilippine 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
midnight appointments 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 of mandamus 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 Valenzuela recognizes 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.

Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Dacao del Sur, Corvera, and Boiser regard De Castro's argument that a permanent
Chief Justice 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
in Beauchamp 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 and Eastern
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
the Valenzuela 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 of
Commissioner 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, 1986
further 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 adefinite 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. Valenzuela arbitrarily
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, Valenzuelanow 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
eliminate midnight 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 executive positions 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 be midnight 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 midnight
appointment.

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,
hadValenzuela 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,
because temporary 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
15 between 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 by May 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 temporary
capacity. 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 afterthe 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 for mandamus in
G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of
Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President
the short list of nominees corresponding thereto in accordance with this decision.

SO ORDERED.
 EN BANC
[ G.R. Nos. 184379-80, April 24, 2012 ]
RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA AND ARTURO LOZADA, PETITIONERS, VS. PRESIDENT GLORIA MACAPAGAL
ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO AND SPO4 ROGER VALEROSO,*RESPONDENTS.

DECISION
SERENO, J.:
What the Court decides today has nothing to do with the substance or merits surrounding the aborted deal of the Philippine
government with the National Broadband Network and ZTE Corporation, or any allegation of petitioner Rodolfo Noel “June” Lozada,
Jr., (Lozada) regarding the same. There is only one issue that we decide today – whether circumstances are adequately alleged and
proven by petitioner Lozada to entitle him to the protection of the writ of amparo. Before us is a Petition for Review on Certiorari of
the Decision dated 12 September 2008 of the Court of Appeals (CA), dismissing the Petition for the Issuance of a Writ ofAmparo.[1]

Petitioner Lozada was the former President and Chief Executive Officer of the Philippine Forest Corporation (PFC), a government-
owned- and -controlled corporation under the Department of Environment and Natural Resources (DENR). [2] Petitioner Violeta
Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo) is his brother.

At the time the Petition for the Writ of Amparo was filed, respondent former President Gloria Macapagal Arroyo (former President
Arroyo) was the incumbent President of the Philippines. Meanwhile, Eduardo Ermita (ES Ermita) was then the Executive Secretary;
Avelino Razon (Razon), the Director General of the Philippine National Police (PNP); Angel Atutubo (Atutubo), the Assistant General
Manager for Security and Emergency Services of the Manila International Airport Authority; and Rodolfo Valeroso (Valeroso), an
agent of the Aviation Security Group (ASG) of the PNP.
Antecedent Facts

The instant Petition stems from the alleged corruption scandal precipitated by a transaction between the Philippine government,
represented by the National Broadband Network (NBN), and ZTE Corporation (ZTE), a Chinese manufacturer of telecommunications
equipment.[3] Former National Economic Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri) sought the services of
Lozada as an unofficial consultant in the ZTE-NBN deal.[4] The latter avers that during the course of his engagement, he discovered
several anomalies in the said transaction involving certain public officials.[5] These events impelled the Senate of the Philippines Blue
Ribbon Committee (Blue Ribbon Committee) to conduct an investigation thereon, [6] for which it issued a subpoena directing Lozada
to appear and testify on 30 January 2008.[7]

On that date, instead of appearing before the Blue Ribbon Committee, Lozada left the country for a purported official trip to London,
as announced by then DENR Secretary Lito Atienza (Sec. Atienza). [8] In the Petition, Lozada alleged that his failure to appear at the
scheduled hearing was upon the instructions of then Executive Assistant Undersecretary Manuel Gaite (Usec.
Gaite).[9] Consequently, the Senate issued an Order dated 30 January 2008: (a) citing Lozada for contempt; (b) ordering his arrest and
detention; and (c) directing the Senate Sergeant-at-Arms to implement the Order and make a return thereon. [10]

While overseas, Lozada asked Sec. Atienza whether the former could be allowed to go back to the Philippines. [11] Upon the approval
of Sec. Atienza, Lozada informed his family that he was returning from Hong Kong on 5 February 2008 on board Cathay Pacific Flight
No. 919, bound to arrive in Manila at 4:40 p.m. on the same day. [12]

In the Petition, Lozada claims that, upon disembarking from the aircraft, several men held his arms and took his bag. Although he
allegedly insisted on meeting with his family, he later realized that it was wiser to just follow them, especially when he overheard
from their handheld radio: “[H]wag kayong dumaan diyan sir nandyan ang mga taga senado.”[13]

Lozada asked if he could go to the comfort room, an opportunity he used to call up his brother, petitioner Arturo, and inform him of
his situation.[14] The men thereafter led him through the departure area of the airport and into a car waiting for them.[15] They made
him sit alone at the back of the vehicle, while a man, whom he later discovered to be respondent Valeroso, took the passenger seat
and was always in contact with other individuals.[16] Lozada observed that other cars tailed their vehicle.[17]

Sec. Atienza then phoned Lozada, assuring the latter that he was with people from the government, and that the former was going
to confer with “ES and Ma’[a]m.” Lozada surmised that these individuals referred to ES Ermita and former President Arroyo,
respectively.[18] Sec. Atienza also purportedly instructed Lozada to pacify his wife, petitioner Violeta, who was making public
statements asking for her husband’s return.[19]

The vehicle traversed the South Luzon Expressway and drove towards the direction of Laguna.[20] Along the way, the men asked
Lozada to draft an antedated letter requesting police protection. [21]

Lozada requested that he be brought home to Pasig, but the men were allegedly compelled to deny his request on account of
unidentified security risks.[22]Eventually, however, the vehicle turned around and drove to Libis, Quezon City. The group stopped at
The Outback restaurant to meet with certain individuals, who turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel
Paul Mascarinas (Col. Mascarinas) of the Police Special Protection Office (PSPO). At the restaurant, Lozada claimed that he was made
to fill in the blanks of a prepared affidavit.[23]

After the meeting, the men informed Lozada that they were going to billet him in a hotel for a night, but he suggested that they take
him to La Salle Green Hills instead. The men acquiesced.[24]

Upon arriving in La Salle Green Hills, Lozada was met by Violeta and his sister, Carmen Lozada (Carmen). [25] He observed that the
perimeter was guarded by policemen, purportedly restraining his liberty and threatening not only his security, but also that of his
family and the De La Salle brothers.[26]

On 6 February 2008, at around 10:00 a.m., Col. Mascarinas supposedly brought Lozada to the office of Atty. Bautista to finalize and
sign an affidavit.[27]

At about 1:00 p.m., Violeta filed before this Court a Petition for Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus
case).[28] Arturo likewise filed before this Court a Petition for a Writ of Amparo, docketed as G.R. No. 181356 (the Amparo case), and
prayed for the issuance of (a) the writ of amparo; (b) a Temporary Protection Order (TPO); and (c) Inspection and Production Orders
as regards documents related to the authority ordering custody over Lozada, as well as any other document that would show
responsibility for his alleged abduction.[29]

At around the same time that Arturo filed the Petition for a Writ of Amparo, Col. Mascarinas drove Lozada back to La Salle Green
Hills.[30] Lozada was then made to sign a typewritten, antedated letter requesting police protection. [31] Thereafter, former
Presidential Spokesperson Michael Defensor (Sec. Defensor) supposedly came and requested Lozada to refute reports that the latter
was kidnapped and to deny knowledge of alleged anomalies in the NBN-ZTE deal. Sec. Defensor then purportedly gave Lozada
P50,000 for the latter’s expenses.[32]

On 7 February 2008, Lozada decided to hold a press conference and contact the Senate Sergeant-at-Arms, who served the warrant
of arrest on him.[33] Lozada claimed that after his press conference and testimony in the Senate, he and his family were since then
harassed, stalked and threatened.[34]

On the same day, this Court issued a Resolution (a) consolidating the Habeas Corpus case and the Amparo case; (b) requiring
respondents in the Habeas Corpuscase to comment on the Petition; (c) issuing a Writ of Amparo; (d) ordering respondents in
the Amparo case to file their verified Return; (e) referring the consolidated Petitions to the CA; and (f) directing the CA to set the
cases for hearing on 14 February 2008.[35] Accordingly, the court a quo set both cases for hearing on 14 February 2008.[36]

On 12 February 2008, respondents filed before the CA a Manifestation and Motion, praying for the dismissal of the Habeas
Corpus case.[37] They asserted that Lozada was never illegally deprived of his liberty and was, at that time, no longer in their custody.
They likewise averred that, beginning 8 February 2008, Lozada had already been under the supervision of the Senate and, from then
on, had been testifying before it.[38]

In their verified Return, respondents claimed that Sec. Atienza had arranged for the provision of a security team to be assigned to
Lozada, who was then fearful for his safety.[39] In effect, respondents asserted that Lozada had knowledge and control of the events
that took place on 5 February 2008, voluntarily entrusted himself to their company, and was never deprived of his liberty. Hence,
respondents prayed for the denial of the interim reliefs and the dismissal of the Petition. [40]

During the initial hearing on 14 February 2008, Lozada and Violeta ratified the Petition in the Amparo case[41] to comply with Section
2 of the Rule on the Writ of Amparo,[42] which imposes an order to be followed by those who can sue for the writ. [43] The CA also
dismissed the Habeas Corpus case in open court for being moot and academic, as Lozada was physically present and was not
confined or detained by any of the respondents.[44] Considering that petitioners failed to question the dismissal of the Habeas
Corpus case, the said dismissal had lapsed into finality, leaving only the Amparo case open for disposition.

Thereafter, Lozada filed a Motion for Temporary Protection Order and Production of Documents,[45] while Arturo filed a Motion for
Production of Documents.[46]Additionally, Arturo also filed a Motion for the Issuance of Subpoena Ad Testificandum and Presentation
of Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso, “Jaime” the Driver and Other
Respondents. Respondents opposed these motions.[47] The CA denied the Motion for the Issuance of Subpoena on the ground that
the alleged acts and statements attributed to Sec. Neri and Benjamin Abalos (Abalos) were irrelevant to the Amparocase, and that to
require them to testify would only result in a fishing expedition. [48] The CA likewise denied Arturo’s subsequent Motion for
Reconsideration.[49]

In its Resolution dated 5 March 2008, the CA dropped former President Arroyo as a respondent on the ground that at the time the
Petition in the Amparo case was filed, she was still the incumbent President enjoying immunity from suit. [50] Arturo filed a Motion for
Reconsideration,[51] which the CA denied in its Resolution dated 25 March 2008.[52]

On 12 September 2008, the CA rendered its Decision denying petitioners the privilege of the Writ of Amparo and dismissing the
Petition.[53] The CA found that petitioners were unable to prove through substantial evidence that respondents violated, or
threatened with violation, the right to life, liberty and security of Lozada.

Petitioners thus filed the instant Petition, praying for: (a) the reversal of the assailed CA Decision; (b) the issuance of the TPO; and (c)
the accreditation of the Association of Major Religious Superiors of the Philippines and the De La Salle Brothers as the sanctuaries of
Lozada and his family.[54] In the alternative, petitioners pray that this Court remand the case to the CA for further hearings and
reverse the latter’s Orders: (a) denying the Motion to Issue a Subpoena Ad Testificandum and (b) dropping former President Arroyo
as a respondent. Petitioners raise the following issues:
(1) Whether the Court a [q]uo erred in ruling to dismiss the petition for a writ of amparo and deny Petitioners’ prayer for a
Temporary Protection Order, inter alia, because there is no substantial evidence to prove that the right to life, liberty or security of
Jun Lozada was violated or threatened with violation. This rule is not in accord with the rule on the writ of amparo and Supreme
Court jurisprudence on substantial evidence[.]

(2) Whether the Ponencia erred and gravely abused its discretion by prematurely ruling that the testimony of witnesses which
Petitioners sought to present and who are subject of the Motion for Issuance of Subpoena ad testificandum were irrelevant to the
Petition for a Writ of Amparo in a way not in accord with the Rules of Court and Supreme Court decisions.

(3) Whether the Court a quo erred in using and considering the affidavits of respondents in coming up with the questioned decision
when these were not offered as evidence and were not subjected to cross-examination. This ruling is not in accord with the Rules of
Court and jurisprudence.

(4) Whether the Court a [q]uo erred in dropping as respondent Pres. Gloria Arroyo despite her failure to submit a verified return and
personally claim presidential immunity in a way not in accord with the Rule on the Writ of Amparo.[55]

The Office of the Solicitor General (OSG) asserts that petitioners failed to adduce substantial evidence, as the allegations they
propounded in support of their Petition were largely hearsay. [56] The OSG also maintains that it was proper for the CA to have
dropped former President Arroyo as respondent on account of her presidential immunity from suit. [57]

Respondent Atutubo also alleges, among others, that: (a) Lozada voluntarily asked for security and protection; (b) Lozada willingly
submitted himself to the company of the police escorts; (c) Atutubo merely accompanied him to pass through the contingency route
customarily provided to VIP passengers, public figures, foreign dignitaries, and the like; and (d) Atutubo only performed his job to
ensure security and maintain order at the airport upon the arrival of Lozada. [58]

In the face of these assertions by respondents, petitioners nevertheless insist that while they have sufficiently established that
Lozada was taken against his will and was put under restraint, respondents have failed to discharge their own burden to prove that
they exercised extraordinary diligence as public officials.[59]Petitioners also maintain that it was erroneous for the CA to have denied
their motion for subpoena ad testificandum for being irrelevant, given that the relevancy of evidence must be examined after it is
offered, and not before.[60] Finally, petitioners contend that the presidential immunity from suit cannot be invoked
inamparo actions.[61]
Issues

In ruling on whether the CA committed reversible error in issuing its assailed Decision, three issues must be discussed:
I. Whether the CA committed an error in dropping former President Arroyo as a respondent in
the Amparo case.
II. Whether the CA committed an error in denying petitioners’ Motion for the Issuance of a Subpoena Ad
Testificandum.
III. Whether petitioners should be granted the privilege of the writ of amparo.

Discussion

The writ of amparo is an independent and summary remedy that provides rapid judicial relief to protect the people’s right to life,
liberty and security.[62] Having been originally intended as a response to the alarming cases of extrajudicial killings and enforced
disappearances in the country, it serves both preventive and curative roles to address the said human rights violations. It is
preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the
subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.[63]

As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats
thereof.[64] Considering that this remedy is aimed at addressing these serious violations of or threats to the right to life, liberty and
security, it cannot be issued on amorphous and uncertain grounds, [65] or in cases where the alleged threat has ceased and is no
longer imminent or continuing.[66] Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial
character of the writ, thus:
The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons,
free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in
response to the prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to
and granted judiciously, lest the ideal sought by theAmparo Rule be diluted and undermined by the indiscriminate filing
of amparo petitions for purposes less than the desire to secureamparo reliefs and protection and/or on the basis of
unsubstantiated allegations.[67] (Emphasis supplied.)

Using this perspective as the working framework for evaluating the assailed CA decision and the evidence adduced by the parties,
this Court denies the Petition.

First issue: Presidential immunity from suit

It is settled in jurisprudence that the President enjoys immunity from suit during his or her tenure of office or actual
incumbency.[68] Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.[69]

In the case at bar, the events that gave rise to the present action, as well as the filing of the original Petition and the issuance of the
CA Decision, occurred during the incumbency of former President Arroyo. In that respect, it was proper for the court a quo to have
dropped her as a respondent on account of her presidential immunity from suit.

It must be underscored, however, that since her tenure of office has already ended, former President Arroyo can no longer invoke
the privilege of presidential immunity as a defense to evade judicial determination of her responsibility or accountability for the
alleged violation or threatened violation of the right to life, liberty and security of Lozada.
Nonetheless, examining the merits of the case still results in the denial of the Petition on the issue of former President Arroyo’s
alleged responsibility or accountability. A thorough examination of the allegations postulated and the evidence adduced by
petitioners reveals their failure to sufficiently establish any unlawful act or omission on her part that violated, or threatened with
violation, the right to life, liberty and security of Lozada. Except for the bare claims that: (a) Sec. Atienza mentioned a certain
“Ma’[a]m,”[70] whom Lozada speculated to have referred to her, and (b) Sec. Defensor told Lozada that “the President was ‘hurting’
from all the media frenzy,”[71] there is nothing in the records that would sufficiently establish the link of former President Arroyo to
the events that transpired on 5-6 February 2010, as well as to the subsequent threats that Lozada and his family purportedly
received.

Second issue: Denial of the issuance of a subpoena ad testificandum

This Court, in Roco v. Contreras,[72] ruled that for a subpoena to issue, it must first appear that the person or documents sought to be
presented are prima facierelevant to the issue subject of the controversy, to wit:
A subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any
investigation conducted under the laws of the Philippines, or for the taking of his deposition.

In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad testificandum and subpoena duces tecum. The first is
used to compel a person to testify, while the second is used to compel the production of books, records, things or documents
therein specified. As characterized in H.C. Liebenow vs. The Philippine Vegetable Oil Company:
The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the exception that it concludes with
an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the
subpoena.

Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites
are present: (1) the books, documents or other things requested must appear prima facie relevant to the issue subject of the
controversy (test of relevancy); and (2) such books must be reasonably described by the parties to be readily identified (test of
definiteness).[73] (Emphasis supplied.)

In the present case, the CA correctly denied petitioners’ Motion for the Issuance of Subpoena Ad Testificandum on the ground that
the testimonies of the witnesses sought to be presented during trial were prima facie irrelevant to the issues of the case. The court a
quo aptly ruled in this manner:
The alleged acts and statements attributed by the petitioner to Neri and Abalos are not relevant to the instant Amparo Petition
where the issue involved is whether or not Lozada’s right to life, liberty and security was threatened or continues to be threatened
with violation by the unlawful act/s of the respondents. Evidence, to be relevant, must have such a relation to the fact in issue as to
induce belief in its existence or nonexistence. Further, Neri, Abalos and a certain driver “Jaime” are not respondents in
this Amparo Petition and the vague allegations averred in the Motion with respect to them do not pass the test of relevancy. To Our
mind, petitioner appears to be embarking on a “fishing expedition”. Petitioner should present the aggrieved party [Lozada], who has
been regularly attending the hearings, to prove the allegations in the Amparo Petition, instead of dragging the names of other
people into the picture. We have repeatedly reminded the parties, in the course of the proceedings, that the
instant Amparo Petition does not involve the investigation of the ZTE-[NBN] contract. Petitioner should focus on the fact in issue
and not embroil this Court into said ZTE-NBN contract, which is now being investigated by the Senate Blue Ribbon Committee and
the Office of the Ombudsman.[74] (Emphasis supplied.)

All the references of petitioners to either Sec. Neri or Abalos were solely with respect to the ZTE-NBN deal, and not to the events
that transpired on 5-6 February 2008, or to the ensuing threats that petitioners purportedly received. Although the present action is
rooted from the involvement of Lozada in the said government transaction, the testimonies of Sec. Neri or Abalos are nevertheless
not prima facie relevant to the main issue of whether there was an unlawful act or omission on the part of respondents that violated
the right to life, liberty and security of Lozada. Thus, the CA did not commit any reversible error in denying the Motion for the
Issuance of Subpoena Ad Testificandum.

Third issue: Grant of the privilege of the writ of amparo

A. Alleged violation of or threat to the right to life, liberty and security of Lozada

Sections 17 and 18 of the Rule on the Writ of Amparo requires the parties to establish their claims by substantial evidence, [75] or
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[76] The use of this evidentiary
threshold reveals the clear intent of the framers of the Rule on the Writ of Amparo to have the equivalent of an administrative
proceeding, albeit judicially conducted, in addressing amparo situations.[77]

In cases where the violation of the right to life, liberty or security has already ceased, it is necessary for the petitioner in
an amparo action to prove the existence of a continuing threat.[78] Thus, this Court held in its Resolution in Razon v. Tagitis:[79]
Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case.
The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity
and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported
disappearance. An Amparo situation subsisted inManalo, however, because of the continuing threat to the brothers’ right to
security; the brothers claimed that since the persons responsible for their enforced disappearance were still at large and had not
been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which
threat constituted a direct violation of their right to security of person. [80] (Emphasis supplied.)

In the present case, the totality of the evidence adduced by petitioners failed to meet the threshold of substantial evidence. Sifting
through all the evidence and allegations presented, the crux of the case boils down to assessing the veracity and credibility of the
parties’ diverging claims as to what actually transpired on 5-6 February 2008. In this regard, this Court is in agreement with the
factual findings of the CA to the extent that Lozada was not illegally deprived of his liberty from the point when he disembarked
from the aircraft up to the time he was led to the departure area of the airport, [81] as he voluntarily submitted himself to the custody
of respondents:
[Lozada] was one of the first few passengers to get off the plane because he was instructed by Secretary Atienza, th[r]ough a phone
call on the night of 04 February 2008, while he was still in Hong Kong, to proceed directly to the Bureau of Immigration so that few
people would notice him and he could be facilitated in going out of the airport without any hassle from the people of the Senate
Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get away from the Senate people. [Lozada] even went to the men’s
room of the airport, after he was allegedly “grabbed”, where he made a call to his brother Arturo, using his Globe phone, and he was
not prevented from making said call, and was simply advised by the person who met him at the tube to (sic) “sir, bilisan mo na”.
When they proceeded out of the tube and while walking, [Lozada] heard from the radio track down, “wag kayo dyan, sir, nandyan
yong mga taga Senado”, so they took a detour and went up to the departure area, did not go out of the normal arrival area, and
proceeded towards the elevator near the Duty Free Shop and then down towards the tarmac. Since [Lozada] was avoiding the
people from the Office of the Senate Sergeant-at-Arms, said detour appears to explain why they did not get out at the arrival
area, where [Lozada] could have passed through immigration so that his passport could be properly stamped.

This Court does not find any evidence on record that [Lozada] struggled or made an outcry for help when he was allegedly
“grabbed” or “abducted” at the airport. [Lozada] even testified that nobody held him, and they were not hostile to him nor
shouted at him. With noon day clarity, this Court finds that the reason why [Lozada] was fetched at the airport was to help him
avoid the Senate contingent, who would arrest and detain him at the Office of the Senate Sergeant-at-Arms, until such time that he
would appear and give his testimony, pursuant to the Order of the Senate on the NBN-ZTE Project. [Lozada] clearly knew this
because at that time, it was still his decision not to testify before the Senate. He agreed with that plan. [82] (Emphases supplied.)

The foregoing statements show that Lozada personally sought the help of Sec. Atienza to avoid the Senate personnel, and thus knew
that the men who met him at the airport were there to aid him in such objective. Surely, the actions of Lozada evinced knowledge
and voluntariness, uncharacteristic of someone who claims to have been forcibly abducted.

However, these men’s subsequent acts of directing Lozada to board the vehicle and driving him around, without disclosing the exact
purpose thereof, appear to be beyond what he had consented to and requested from Sec. Atienza. These men neither informed him
of where he was being transported nor provided him complete liberty to contact his family members to assure them of his safety.
These acts demonstrated that he lacked absolute control over the situation, as well as an effective capacity to challenge their
instructions.

Nevertheless, it must be emphasized that if Lozada had in fact been illegally restrained, so much so that his right to liberty and
security had been violated, the acts that manifested this restraint had already ceased and has consequently rendered the grant of
the privilege of the writ of amparo moot. Whether or not Lozada was deprived of his liberty from the point when he was led inside
the vehicle waiting for him at the airport up to the time he was taken to La Salle Green Hills, petitioners’ assertions that Lozada and
his family continue to suffer various threats from respondents remain unproven. The CA correctly found as follows:
The supposed announcement of General Razon over the radio that [Lozada] was in the custody of the PNP can neither be
construed as a threat to [Lozada’s] life, liberty and security. Certainly, no person in his right mind would make that kind of media
announcement if his intent was indeed to threaten somebody’s life, liberty and security.
xxx xxx xxx

He claims that he is threatened by the alleged presence of armed men riding in motorcycle passing outside the De La Salle premises
where he and his family are staying and by alleged threats of armed men around him at places where he went to. Again, these
alleged threats were not proven by any evidence at all, as having originated from any of the respondents.

[Lozada] also considers the installation of the surveillance camera at the De La Salle and at St. Scholastica as indirect threat to his
right to life, liberty and security. He claims that these are spy cameras. However, save for [Lozada’s] self-serving claim, he
simply failed to prove that they were installed or ordered installed by the respondents for the purpose of threatening his right to
life, liberty and security.

[Lozada] further maintains that there is an alleged trend, i.e., wherever he goes, there is a bomb threat. There were bomb threats in
the places where he went to like in [the Polytechnic University of the Philippines], Dagupan, Cebu and Bohol. However, [Lozada]
himself testified that he did not try to ascertain where the bomb threats emanated. Plainly, there is no evidence on record that the
bomb threats were made by the respondents or done upon their instigation.

Moreover, [Lozada] views the pronouncement of the Secretary of Justice that he was put on the watch list of the Bureau of
Immigration as a threat to his life, liberty and security. This alleged threat is again unsupported by evidence, as in fact, [Lozada]
testified that he did not ascertain from the Bureau of Immigration whether his name was actually in the official watch list of the
Bureau. At any rate, the Secretary of Justice is not one of the respondents in the amparo petition, and there is no showing in the
record that it was the respondents who ordered the same for the purpose of threatening him.

[Lozada] harps on the filing of alleged frivolous cases against him and his family as threat to his life, liberty and security. xxx
However, [Lozada] himself testified that he does not know whether the respondents or any of the respondents ordered the filing
of these cases against him. In any event, said purported cases are to be determined based on their own merits and are clearly
beyond the realm of the instant amparopetition filed against the respondents.[83] (Emphasis supplied.)

Finally, petitioners insist that while they were able to sufficiently establish their case by the required evidentiary standard,
respondents failed to discharge their burden to prove their defenses by substantial evidence and to show that respondents
exercised extraordinary diligence as required by the Rule on the Writ ofAmparo.[84] This Court has squarely passed upon this
contention in Yano v. Sanchez,[85] to wit:
The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the
automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by
substantial evidence.

Thus, in amparo actions, petitioners must establish their claims by substantial evidence, and they cannot merely rely on the
supposed failure of respondents to prove either their defenses or their exercise of extraordinary diligence. In this case, the totality of
the evidence presented by petitioners fails to meet the requisite evidentiary threshold, and the privilege of the writ of amparo has
already been rendered moot and academic by the cessation of the restraint to Lozada’s liberty.

B. Propriety of the privilege of the writ of amparo and its interim reliefs

As previously discussed, there is no basis to grant Lozada the privilege of the writ of amparo, considering that the illegal restraint
alleged in this case had already ceased and there is no imminent or continuing restriction on his liberty. In Castillo v. Cruz,[86] this
Court held as follows:
Although respondents’ release from confinement does not necessarily hinder supplication for the writ of amparo, absent any
evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists
threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be
justified. (Emphasis supplied.)

Further, it appears that Lozada had already filed before the Department of Justice (DOJ) a Complaint charging respondents with
kidnapping and attempted murder, docketed as I.S. No. 2008-467.[87] In this regard, this Court’s ruling in Rubrico v. Arroyo[88] is worth
considering:
First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading to
the filing of the subject amparo petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps
to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved in the
detention of Lourdes have been set in motion. It must be pointed out, though, that the filing of the OMB complaint came before the
effectivity of the Amparo Rule on October 24, 2007.

Second, Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been
commenced. The succeeding Sec. 23, on the other hand, provides that when the criminal suit is filed subsequent to a petition
for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the
disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the
outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of
the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 6 of the Rule, already issued ex parte the writ
of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in
OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition
impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the
acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both
proceedings to obviate the mischief inherent in a multiplicity-of-suits situation.

Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to
protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22
and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. Towards this end, two things are at once
indicated: (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal
complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the
threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its own
investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent
documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should be
allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective. (Emphasis
supplied.)

Thus, if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter action can more adequately
dispose of the allegations made by petitioners. After all, one of the ultimate objectives of the writ of amparo as a curative remedy is
to facilitate the subsequent punishment of perpetrators.[89] On the other hand, if there is no actual criminal case lodged before the
courts, then the denial of the Petition is without prejudice to the filing of the appropriate administrative, civil or criminal case, if
applicable, against those individuals whom Lozada deems to have unduly restrained his liberty.

Finally, with respect to the interim reliefs sought by petitioners, this Court, in Yano v. Sanchez,[90] declined to grant the prayer for the
issuance of a TPO, as well as Inspection and Production Orders, upon a finding that the implicated public officials were not
accountable for the disappearance subject of that case. Analogously, it would be incongruous to grant herein petitioners’ prayer for
a TPO and Inspection and Production Orders and at the same time rule that there no longer exists any imminent or continuing threat
to Lozada’s right to life, liberty and security. Thus, there is no basis on which a prayer for the issuance of these interim reliefs can be
anchored.

WHEREFORE, the instant petition is DENIED for being moot and academic. The Court of Appeals’ denial of the privilege of the writ of
amparo is herebyAFFIRMED.
SO ORDERED.
 EN BANC
[ G.R. No. 181704, December 06, 2011 ]
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), REPRESENTED BY ITS NATIONAL PRESIDENT (BOCEA NATIONAL
EXECUTIVE COUNCIL) MR. ROMULO A. PAGULAYAN, PETITIONER, VS. HON. MARGARITO B. TEVES, IN HIS CAPACITY AS SECRETARY
OF THE DEPARTMENT OF FINANCE, HON. NAPOLEON L. MORALES, IN HIS CAPACITY AS COMMISSIONER OF THE BUREAU OF
CUSTOMS, HON. LILIAN B. HEFTI, IN HER CAPACITY AS COMMISSIONER OF THE BUREAU OF INTERNAL REVENUE, RESPONDENTS.

DECISION
VILLARAMA, JR., J.:
Before this Court is a petition[1] for certiorari and prohibition with prayer for injunctive relief/s under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, to declare Republic Act (R.A.) No. 9335,[2] otherwise known as the Attrition Act of 2005, and its
Implementing Rules and Regulations[3] (IRR) unconstitutional, and the implementation thereof be enjoined permanently.
The Facts

On January 25, 2005, former President Gloria Macapagal-Arroyo signed into law R.A. No. 9335 which took effect on February 11,
2005.

In Abakada Guro Party List v. Purisima[4] (Abakada), we said of R.A. No. 9335:
RA [No.] 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). It covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.

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.

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.

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.

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 [No.] 9335, to be approved by a Joint Congressional Oversight Committee created for such purpose.[5]

The Joint Congressional Oversight Committee approved the assailed IRR on May 22, 2006. Subsequently, the IRR was published on
May 30, 2006 in two newspapers of general circulation, the Philippine Star and the Manila Standard, and became effective fifteen
(15) days later.[6]

Contending that the enactment and implementation of R.A. No. 9335 are tainted with constitutional infirmities in violation of the
fundamental rights of its members, petitioner Bureau of Customs Employees Association (BOCEA), an association of rank-and-file
employees of the Bureau of Customs (BOC), duly registered with the Department of Labor and Employment (DOLE) and the Civil
Service Commission (CSC), and represented by its National President, Mr. Romulo A. Pagulayan (Pagulayan), directly filed the
present petition before this Court against respondents Margarito B. Teves, in his capacity as Secretary of the Department of Finance
(DOF), Commissioner Napoleon L. Morales (Commissioner Morales), in his capacity as BOC Commissioner, and Lilian B. Hefti, in her
capacity as Commissioner of the Bureau of Internal Revenue (BIR). In its petition, BOCEA made the following averments:

Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate of R.A. No. 9335 and its IRR, and in order to comply
with the stringent deadlines thereof, started to disseminate Collection District Performance Contracts [7] (Performance Contracts) for
the lower ranking officials and rank-and-file employees to sign. The Performance Contract pertinently provided:
xxxx

WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing Rules and Regulations (IRR) of the Attrition Act of 2005,
that provides for the setting of criteria and procedures for removing from the service Officials and Employees whose revenue
collection fall short of the target in accordance with Section 7 of Republic Act 9335.

xxxx

NOW, THEREFORE, for and in consideration of the foregoing premises, parties unto this Agreement hereby agree and so agreed to
perform the following:

xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection Target and further accepts/commits to meet the said
target under the following conditions:

a.) That he/she will meet the allocated Revenue Collection Target and thereby undertakes and binds himself/herself that in the
event the revenue collection falls short of the target with due consideration of all relevant factors affecting the level of collection
as provided in the rules and regulations promulgated under the Act and its IRR, he/she will voluntarily submit to the provisions of
Sec. 25 (b) of the IRR and Sec. 7 of the Act; and

b.) That he/she will cascade and/or allocate to respective Appraisers/Examiners or Employees under his/her section the said
Revenue Collection Target and require them to execute a Performance Contract, and direct them to accept their individual target.
The Performance Contract executed by the respective Examiners/Appraisers/Employees shall be submitted to the Office of the
Commissioner through the LAIC on or before March 31, 2008.

x x x x[8]

BOCEA opined that the revenue target was impossible to meet due to the Government's own policies on reduced tariff rates and tax
breaks to big businesses, the occurrence of natural calamities and because of other economic factors. BOCEA claimed that some
BOC employees were coerced and forced to sign the Performance Contract. The majority of them, however, did not sign. In
particular, officers of BOCEA were summoned and required to sign the Performance Contracts but they also refused. To ease the
brewing tension, BOCEA claimed that its officers sent letters, and sought several dialogues with BOC officials but the latter refused
to heed them.

In addition, BOCEA alleged that Commissioner Morales exerted heavy pressure on the District Collectors, Chiefs of Formal Entry
Divisions, Principal Customs Appraisers and Principal Customs Examiners of the BOC during command conferences to make them
sign their Performance Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali (Deputy Commissioner Umali) individually
spoke to said personnel to convince them to sign said contracts. Said personnel were threatened that if they do not sign their
respective Performance Contracts, they would face possible reassignment, reshuffling, or worse, be placed on floating status. Thus,
all the District Collectors, except a certain Atty. Carlos So of the Collection District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts.

BOCEA further claimed that Pagulayan was constantly harassed and threatened with lawsuits. Pagulayan approached Deputy
Commissioner Umali to ask the BOC officials to stop all forms of harassment, but the latter merely said that he would look into the
matter. On February 5, 2008, BOCEA through counsel wrote the Revenue Performance Evaluation Board (Board) to desist from
implementing R.A. No. 9335 and its IRR and from requiring rank-and-file employees of the BOC and BIR to sign Performance
Contracts.[9] In his letter-reply[10] dated February 12, 2008, Deputy Commissioner Umali denied having coerced any BOC employee to
sign a Performance Contract. He also defended the BOC, invoking its mandate of merely implementing the law. Finally, Pagulayan
and BOCEA's counsel, on separate occasions, requested for a certified true copy of the Performance Contract from Deputy
Commissioner Umali but the latter failed to furnish them a copy. [11]

This petition was filed directly with this Court on March 3, 2008. BOCEA asserted that in view of the unconstitutionality of R.A. No.
9335 and its IRR, and their adverse effects on the constitutional rights of BOC officials and employees, direct resort to this Court is
justified. BOCEA argued, among others, that its members and other BOC employees are in great danger of losing their jobs should
they fail to meet the required quota provided under the law, in clear violation of their constitutional right to security of tenure, and
at their and their respective families' prejudice.

In their Comment,[12] respondents, through the Office of the Solicitor General (OSG), countered that R.A. No. 9335 and its IRR do not
violate the right to due process and right to security of tenure of BIR and BOC employees. The OSG stressed that the guarantee of
security of tenure under the 1987 Constitution is not a guarantee of perpetual employment. R.A. No. 9335 and its IRR provided a
reasonable and valid ground for the dismissal of an employee which is germane to the purpose of the law. Likewise, R.A. No. 9335
and its IRR provided that an employee may only be separated from the service upon compliance with substantive and procedural
due process. The OSG added that R.A. No. 9335 and its IRR must enjoy the presumption of constitutionality.

In its Reply,[13] BOCEA claimed that R.A. No. 9335 employs means that are unreasonable to achieve its stated objectives; that the law
is unduly oppressive of BIR and BOC employees as it shifts the extreme burden upon their shoulders when the Government itself has
adopted measures that make collection difficult such as reduced tariff rates to almost zero percent and tax exemption of big
businesses; and that the law is discriminatory of BIR and BOC employees. BOCEA manifested that only the high-ranking officials of
the BOC benefited largely from the reward system under R.A. No. 9335 despite the fact that they were not the ones directly toiling
to collect revenue. Moreover, despite the BOCEA's numerous requests, [14] BOC continually refused to provide BOCEA the
Expenditure Plan on how such reward was distributed.

Since BOCEA was seeking similar reliefs as that of the petitioners in Abakada Guro Party List v. Purisima, BOCEA filed a Motion to
Consolidate[15] the present case with Abakada on April 16, 2008. However, pending action on said motion, the Court rendered its
decision in Abakada on August 14, 2008. Thus, the consolidation of this case with Abakada was rendered no longer possible.[16]

In Abakada, this Court, through then Associate Justice, now Chief Justice Renato C. Corona, declared Section 12[17] of R.A. No. 9335
creating a Joint Congressional Oversight Committee to approve the IRR as unconstitutional and violative of the principle of
separation of powers. However, the constitutionality of the remaining provisions of R.A. No. 9335 was upheld pursuant to Section
13[18] of R.A. No. 9335. The Court also held that until the contrary is shown, the IRR of R.A. No. 9335 is presumed valid and effective
even without the approval of the Joint Congressional Oversight Committee.[19]
Notwithstanding our ruling in Abakada, both parties complied with our Resolution[20] dated February 10, 2009, requiring them to
submit their respective Memoranda.
The Issues

BOCEA raises the following issues:

I.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO DUE PROCESS OF THE COVERED BIR AND BOC OFFICIALS AND EMPLOYEES[;]
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF BIR AND BOC OFFICIALS AND EMPLOYEES TO THE EQUAL PROTECTION OF
THE LAWS[;]
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE RIGHT TO SECURITY
OF TENURE OF BIR AND BOC OFFICIALS AND EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3), ARTICLE IX (B) OF THE
CONSTITUTION[;]
IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND REGULATIONS ARE UNCONSTITUTIONAL AS THEY
CONSTITUTE UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE PERFORMANCE EVALUATION BOARD IN VIOLATION
OF THE PRINCIPLE OF SEPARATION OF POWERS ENSHRINED IN THE CONSTITUTION[; AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF ATTAINDER AND HENCE[,] UNCONSTITUTIONAL BECAUSE IT INFLICTS
PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A PARTICULAR GROUP OR CLASS OF OFFICIALS AND EMPLOYEES WITHOUT
TRIAL.[21]

BOCEA manifested that while waiting for the Court to give due course to its petition, events unfolded showing the patent
unconstitutionality of R.A. No. 9335. It narrated that during the first year of the implementation of R.A. No. 9335, BOC employees
exerted commendable efforts to attain their revenue target of P196 billion which they surpassed by as much as P2 billion for that
year alone. However, this was attained only because oil companies made advance tax payments to BOC. Moreover, BOC employees
were given their "reward" for surpassing said target only in 2008, the distribution of which they described as unjust, unfair, dubious
and fraudulent because only top officials of BOC got the huge sum of reward while the employees, who did the hard task of
collecting, received a mere pittance of around P8,500.00. In the same manner, the Bonds Division of BOC-NAIA collected 400+% of
its designated target but the higher management gave out to the employees a measly sum of P8,500.00 while the top level officials
partook of millions of the excess collections. BOCEA relies on a piece of information revealed by a newspaper showing the list of
BOC officials who apparently earned huge amounts of money by way of reward. [22] It claims that the recipients thereof included
lawyers, support personnel and other employees, including a dentist, who performed no collection functions at all. These alleged
anomalous selection, distribution and allocation of rewards was due to the failure of R.A. No. 9335 to set out clear guidelines.[23]

In addition, BOCEA avers that the Board initiated the first few cases of attrition for the Fiscal Year 2007 by subjecting five BOC
officials from the Port of Manila to attrition despite the fact that the Port of Manila substantially complied with the provisions of R.A.
No. 9335. It is thus submitted that the selection of these officials for attrition without proper investigation was nothing less than
arbitrary. Further, the legislative and executive departments' promulgation of issuances and the Government's accession to regional
trade agreements have caused a significant diminution of the tariff rates, thus, decreasing over-all collection. These unrealistic
settings of revenue targets seriously affect BIR and BOC employees tasked with the burden of collection, and worse, subjected them
to attrition.[24]

BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to due process because the
termination of employees who had not attained their revenue targets for the year is peremptory and done without any
form of hearing to allow said employees to ventilate their side. Moreover, R.A. No. 9335 and its IRR do not comply with the
requirements under CSC rules and regulations as the dismissal in this case is immediately executory. Such immediately
executory nature of the Board's decision negates the remedies available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to equal protection of the law because
R.A. No. 9335 and its IRR unduly discriminates against BIR and BOC employees as compared to employees of other revenue
generating government agencies like the Philippine Amusement and Gaming Corporation, Department of Transportation
and Communication, the Air Transportation Office, the Land Transportation Office, and the Philippine Charity Sweepstakes
Office, among others, which are not subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to security of tenure because R.A. No.
9335 and its IRR effectively removed remedies provided in the ordinary course of administrative procedure afforded to
government employees. The law likewise created another ground for dismissal, i.e., non-attainment of revenue collection
target, which is not provided under CSC rules and which is, by its nature, unpredictable and therefore arbitrary and
unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress granted to the Revenue
Performance Evaluation Board (Board) the unbridled discretion of formulating the criteria for termination, the manner of
allocating targets, the distribution of rewards and the determination of relevant factors affecting the targets of collection,
which is tantamount to undue delegation of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a particular group or class of
officials and employees without trial. This is evident from the fact that the law confers upon the Board the power to impose
the penalty of removal upon employees who do not meet their revenue targets; that the same is without the benefit of
 hearing; and that the removal from service is immediately executory. Lastly, it disregards the presumption of regularity in
the performance of the official functions of a public officer.[25]

On the other hand, respondents through the OSG stress that except for Section 12 of R.A. No. 9335, R.A. No. 9335 and its IRR are
constitutional, as per our ruling in Abakada. Nevertheless, the OSG argues that the classification of BIR and BOC employees as public
officers under R.A. No. 9335 is based on a valid and substantial distinction since the revenue generated by the BIR and BOC is
essentially in the form of taxes, which is the lifeblood of the State, while the revenue produced by other agencies is merely
incidental or secondary to their governmental functions; that in view of their mandate, and for purposes of tax collection, the BIR
and BOC are sui generis; that R.A. No. 9335 complies with the "completeness" and "sufficient standard" tests for the permissive
delegation of legislative power to the Board; that the Board exercises its delegated power consistent with the policy laid down in the
law, that is, to optimize the revenue generation capability and collection of the BIR and the BOC; that parameters were set in order
that the Board may identify the officials and employees subject to attrition, and the proper procedure for their removal in case they
fail to meet the targets set in the Performance Contract were provided; and that the rights of BIR and BOC employees to due process
of law and security of tenure are duly accorded by R.A. No. 9335. The OSG likewise maintains that there was no encroachment of
judicial power in the enactment of R.A. No. 9335 amounting to a bill of attainder since R.A. No. 9335 and its IRR merely defined the
offense and provided for the penalty that may be imposed. Finally, the OSG reiterates that the separation from the service of any
BIR or BOC employee under R.A. No. 9335 and its IRR shall be done only upon due consideration of all relevant factors affecting the
level of collection, subject to Civil Service laws, rules and regulations, and in compliance with substantive and procedural due
process. The OSG opines that the Performance Contract, far from violating the BIR and BOC employees' right to due process, actually
serves as a notice of the revenue target they have to meet and the possible consequences of failing to meet the same. More, there
is nothing in the law which prevents the aggrieved party from appealing the unfavorable decision of dismissal. [26]

In essence, the issues for our resolution are:

1. Whether there is undue delegation of legislative power to the Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA's members to: (a) equal protection of laws,
(b) security of tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.

Our Ruling

Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA has locus standi. BOCEA impugns the constitutionality of
R.A. No. 9335 and its IRR because its members, who are rank-and-file employees of the BOC, are actually covered by the law and its
IRR. BOCEA's members have a personal and substantial interest in the case, such that they have sustained or will sustain, direct
injury as a result of the enforcement of R.A. No. 9335 and its IRR. [27]

However, we find no merit in the petition and perforce dismiss the same.

It must be noted that this is not the first time the constitutionality of R.A. No. 9335 and its IRR are being challenged. The Court
already settled the majority of the same issues raised by BOCEA in our decision in Abakada, which attained finality on September 17,
2008. As such, our ruling therein is worthy of reiteration in this case.

We resolve the first issue in the negative.

The principle of separation of powers ordains that each of the three great branches of government has exclusive cognizance of and
is supreme in matters falling within its own constitutionally allocated sphere.[28] Necessarily imbedded in this doctrine is the principle
of non-delegation of powers, as expressed in the Latin maxim potestas delegata non delegari potest, which means "what has been
delegated, cannot be delegated." This doctrine is based on the ethical principle that such delegated power constitutes not only a
right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening
mind of another.[29] However, this principle of non-delegation of powers admits of numerous exceptions, [30] one of which is the
delegation of legislative power to various specialized administrative agencies like the Board in this case.

The rationale for the aforementioned exception was clearly explained in our ruling in Gerochi v. Department of Energy,[31] to wit:
In the face of the increasing complexity of modern life, delegation of legislative power to various specialized administrative agencies
is allowed as an exception to this principle. Given the volume and variety of interactions in today's society, it is doubtful if the
legislature can promulgate laws that will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the
need to delegate to administrative bodies -- the principal agencies tasked to execute laws in their specialized fields -- the authority
to promulgate rules and regulations to implement a given statute and effectuate its policies. All that is required for the valid exercise
of this power of subordinate legislation is that the regulation be germane to the objects and purposes of the law and that the
regulation be not in contradiction to, but in conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test.[32]

Thus, in Abakada, we held,

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. 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. 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.

RA [No.] 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" 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 [Over] the Revenue Percent (%) of the Excess Collection to Accrue to the
Targets 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.
x x x x x x x x x"

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. 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 collectionas
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, and 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;

x x x x x x x x x"

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". 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.[33]

We could not but deduce that the completeness test and the sufficient standard test were fully satisfied by R.A. No. 9335, as evident
from the aforementioned Sections 2, 4 and 7 thereof. Moreover, Section 5 [34] of R.A. No. 9335 also provides for the incentives due to
District Collection Offices. While it is apparent that the last paragraph of Section 5 provides that "[t]he allocation, distribution and
release of the district reward shall likewise be prescribed by the rules and regulations of the Revenue Performance and Evaluation
Board," Section 7 (a)[35] of R.A. No. 9335 clearly mandates and sets the parameters for the Board by providing that such rules and
guidelines for the allocation, distribution and release of the fund shall be in accordance with Sections 4 and 5 of R.A. No. 9335. In
sum, the Court finds that R.A. No. 9335, read and appreciated in its entirety, is complete in all its essential terms and conditions, and
that it contains sufficient standards as to negate BOCEA's supposition of undue delegation of legislative power to the Board.

Similarly, we resolve the second issue in the negative.

Equal protection simply provides that all persons or things similarly situated should be treated in a similar manner, both as to rights
conferred and responsibilities imposed. The purpose of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper
execution through the state's duly constituted authorities. In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a
legitimate governmental objective.[36]

Thus, on the issue on equal protection of the laws, we held in Abakada:

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis
and not arbitrary. With respect to RA [No.] 9335, its expressed public policy is the optimization of the revenue-generation capability
and collection of the BIR and the BOC. 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.

x x x x x x x x x"

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.

x x x x x x x x x"

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
[No.] 9335 fully satisfy the demands of equal protection.[37]

As it was imperatively correlated to the issue on equal protection, the issues on the security of tenure of affected BIR and BOC
officials and employees and their entitlement to due process were also settled in Abakada:
Clearly, RA [No.] 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. In the case of RA [No.] 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. The action for removal is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process.[38]

In addition, the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, a fair and
reasonable opportunity to explain one's side.[39] BOCEA's apprehension of deprivation of due process finds its answer in Section 7 (b)
and (c) of R.A. No. 9335.[40] The concerned BIR or BOC official or employee is not simply given a target revenue collection and
capriciously left without any quarter. R.A. No. 9335 and its IRR clearly give due consideration to all relevant factors[41] that may affect
the level of collection. In the same manner, exemptions[42] were set, contravening BOCEA's claim that its members may be removed
for unattained target collection even due to causes which are beyond their control. Moreover, an employee's right to be heard is not
at all prevented and his right to appeal is not deprived of him. [43] In fine, a BIR or BOC official or employee in this case cannot be
arbitrarily removed from the service without according him his constitutional right to due process. No less than R.A. No. 9335 in
accordance with the 1987 Constitution guarantees this.

We have spoken, and these issues were finally laid to rest. Now, the Court proceeds to resolve the last, but new issue raised by
BOCEA, that is, whether R.A. No. 9335 is a bill of attainder proscribed under Section 22, [44] Article III of the 1987 Constitution.

On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of attainder is a legislative act which inflicts punishment on
individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain
individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial.[45]

In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City,[46] Justice Florentino P. Feliciano traces the roots of a Bill of
Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few centuries back, Parliament would at times enact bills or
statutes which declared certain persons attainted and their blood corrupted so that it lost all heritable quality (Ex Parte Garland, 4
Wall. 333, 18 L.Ed. 366 [1867]). In more modern terms, a bill of attainder is essentially a usurpation of judicial power by a legislative
body. It envisages and effects the imposition of a penalty -- the deprivation of life or liberty or property -- not by the ordinary
processes of judicial trial, but by legislative fiat. While cast in the form of special legislation, a bill of attainder (or bill of pains and
penalties, if it prescribed a penalty other than death) is in intent and effect a penal judgment visited upon an identified person or
group of persons (and not upon the general community) without a prior charge or demand, without notice and hearing, without
an opportunity to defend, without any of the civilized forms and safeguards of the judicial process as we know it (People v. Ferrer,
48 SCRA 382 [1972]; Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed.
1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill of attainder wielded as a means of
legislative oppression. x x x[47]

R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to inflict punishment without a judicial trial. R.A.
No. 9335 merely lays down the grounds for the termination of a BIR or BOC official or employee and provides for the consequences
thereof. The democratic processes are still followed and the constitutional rights of the concerned employee are amply protected.

A final note.

We find that BOCEA's petition is replete with allegations of defects and anomalies in allocation, distribution and receipt of rewards.
While BOCEA intimates that it intends to curb graft and corruption in the BOC in particular and in the government in general which is
nothing but noble, these intentions do not actually pertain to the constitutionality of R.A. No. 9335 and its IRR, but rather in the
faithful implementation thereof. R.A. No. 9335 itself does not tolerate these pernicious acts of graft and corruption. [48] As the Court
is not a trier of facts, the investigation on the veracity of, and the proper action on these anomalies are in the hands of the Executive
branch. Correlatively, the wisdom for the enactment of this law remains within the domain of the Legislative branch. We merely
interpret the law as it is. The Court has no discretion to give statutes a meaning detached from the manifest intendment and
language thereof.[49] Just like any other law, R.A. No. 9335 has in its favor the presumption of constitutionality, and to justify its
nullification, there must be a clear and unequivocal breach of the Constitution and not one that is doubtful, speculative, or
argumentative.[50] We have so declared in Abakada, and we now reiterate that R.A. No. 9335 and its IRR are constitutional.

WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is DISMISSED.

No costs.

SO ORDERED.
 EN BANC
[ G.R. No. 164987, April 24, 2012 ]
LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP), REPRESENTED BY ITS CHAIRMAN AND COUNSEL, CEFERINO PADUA,
MEMBERS, ALBERTO ABELEDA, JR., ELEAZAR ANGELES, GREGELY FULTON ACOSTA, VICTOR AVECILLA, GALILEO BRION, ANATALIA
BUENAVENTURA, EFREN CARAG, PEDRO CASTILLO, NAPOLEON CORONADO, ROMEO ECHAUZ, ALFREDO DE GUZMAN, ROGELIO
KARAGDAG, JR., MARIA LUZ ARZAGA-MENDOZA, LEO LUIS MENDOZA, ANTONIO P. PAREDES, AQUILINO PIMENTEL III, MARIO
REYES, EMMANUEL SANTOS, TERESITA SANTOS, RUDEGELIO TACORDA, SECRETARY GEN. ROLANDO ARZAGA, BOARD OF
CONSULTANTS, JUSTICE ABRAHAM SARMIENTO, SEN. AQUILINO PIMENTEL, JR., AND BARTOLOME FERNANDEZ, JR., PETITIONERS,
VS. THE SECRETARY OF BUDGET AND MANAGEMENT, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON AUDIT, AND
THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES IN REPRESENTATION OF THE MEMBERS
OF THE CONGRESS, RESPONDENTS.

DECISION
MENDOZA, J.:
For consideration of the Court is an original action for certiorari assailing the constitutionality and legality of the implementation of
the Priority Development Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the General Appropriations Act for
2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and Poverty (LAMP), a group of lawyers who have banded together with
a mission of dismantling all forms of political, economic or social monopoly in the country, [1] also sought the issuance of a writ of
preliminary injunction or temporary restraining order to enjoin respondent Secretary of the Department of Budget and
Management (DBM) from making, and, thereafter, releasing budgetary allocations to individual members of Congress as “pork
barrel” funds out of PDAF. LAMP likewise aimed to stop the National Treasurer and the Commission on Audit (COA) from enforcing
the questioned provision.

On September 14, 2004, the Court required respondents, including the President of the Senate and the Speaker of the House of
Representatives, to comment on the petition. On April 7, 2005, petitioner filed a Reply thereto.[2] On April 26, 2005, both parties
were required to submit their respective memoranda.

The GAA of 2004 contains the following provision subject of this petition:
PRIORITY DEVELOPMENT ASSISTANCE FUND

For fund requirements of priority development programs and projects, as indicated hereunder – P8,327,000,000.00

Xxxxx

Special Provision

1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or to fund the
required counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be released directly to the
implementing agency or Local Government Unit concerned: PROVIDED, FURTHER, That the allocations authorized herein may be
realigned to any expense class, if deemed necessary: PROVIDED FURTHERMORE, That a maximum of ten percent (10%) of the
authorized allocations by district may be used for procurement of rice and other basic commodities which shall be purchased from
the National Food Authority.

Petitioner’s Position

According to LAMP, the above provision is silent and, therefore, prohibits an automatic or direct allocation of lump sums to
individual senators and congressmen for the funding of projects. It does not empower individual Members of Congress to propose,
select and identify programs and projects to be funded out of PDAF. “In previous GAAs, said allocation and identification of projects
were the main features of the ‘pork barrel’ system technically known as Countrywide Development Fund (CDF). Nothing of the sort
is now seen in the present law (R.A. No. 9206 of CY 2004).[3] In its memorandum, LAMP insists that “[t]he silence in the law of direct
or even indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the Congress to
scrap and do away with the ‘pork barrel’ system.”[4] In other words, “[t]he omission of the PDAF provision to specify sums as
‘allocations’ to individual Members of Congress is a ‘casus omissus’ signifying an omission intentionally made by Congress that this
Court is forbidden to supply.”[5] Hence, LAMP is of the conclusion that “the pork barrel has become legally defunct under the
present state of GAA 2004.”[6]

LAMP further decries the supposed flaws in the implementation of the provision, namely: 1) the DBM illegally made and directly
released budgetary allocations out of PDAF in favor of individual Members of Congress; and 2) the latter do not possess the power
to propose, select and identify which projects are to be actually funded by PDAF.

For LAMP, this situation runs afoul against the principle of separation of powers because in receiving and, thereafter, spending funds
for their chosen projects, the Members of Congress in effect intrude into an executive function. In other words, they cannot directly
spend the funds, the appropriation for which was made by them. In their individual capacities, the Members of Congress cannot
“virtually tell or dictate upon the Executive Department how to spend taxpayer’s money. [7] Further, the authority to propose and
select projects does not pertain to legislation. “It is, in fact, a non-legislative function devoid of constitutional sanction,”[8]and,
therefore, impermissible and must be considered nothing less than malfeasance. The proposal and identification of the projects do
not involve the making of laws or the repeal and amendment thereof, which is the only function given to the Congress by the
Constitution. Verily, the power of appropriation granted to Congress as a collegial body, “does not include the power of the
Members thereof to individually propose, select and identify which projects are to be actually implemented and funded - a function
which essentially and exclusively pertains to the Executive Department.” [9] By allowing the Members of Congress to receive direct
allotment from the fund, to propose and identify projects to be funded and to perform the actual spending of the fund, the
implementation of the PDAF provision becomes legally infirm and constitutionally repugnant.

Respondents’ Position

For their part, the respondents[10] contend that the petition miserably lacks legal and factual grounds. Although they admit that
PDAF traced its roots to CDF,[11]they argue that the former should not be equated with “pork barrel,” which has gained a derogatory
meaning referring “to government projects affording political opportunism.” [12] In the petition, no proof of this was offered. It
cannot be gainsaid then that the petition cannot stand on inconclusive media reports, assumptions and conjectures alone. Without
probative value, media reports cited by the petitioner deserve scant consideration especially the accusation that corrupt legislators
have allegedly proposed cuts or slashes from their pork barrel. Hence, the Court should decline the petitioner’s plea to take judicial
notice of the supposed iniquity of PDAF because there is no concrete proof that PDAF, in the guise of “pork barrel,” is a source of
“dirty money” for unscrupulous lawmakers and other officials who tend to misuse their allocations. These “facts” have no attributes
of sufficient notoriety or general recognition accepted by the public without qualification, to be subjected to judicial notice. This
applies, a fortiori, to the claim that Members of Congress are beneficiaries of commissions (kickbacks) taken out of the PDAF
allocations and releases and preferred by favored contractors representing from 20% to 50% of the approved budget for a particular
project. [13] Suffice it to say, the perceptions of LAMP on the implementation of PDAF must not be based on mere speculations
circulated in the news media preaching the evils of pork barrel. Failing to present even an iota of proof that the DBM Secretary has
been releasing lump sums from PDAF directly or indirectly to individual Members of Congress, the petition falls short of its cause.

Likewise admitting that CDF and PDAF are “appropriations for substantially similar, if not the same, beneficial purposes,” [14] the
respondents invoke Philconsa v. Enriquez,[15] where CDF was described as an imaginative and innovative process or mechanism of
implementing priority programs/projects specified in the law. InPhilconsa, the Court upheld the authority of individual Members of
Congress to propose and identify priority projects because this was merely recommendatory in nature. In said case, it was also
recognized that individual members of Congress far more than the President and their congressional colleagues were likely to be
knowledgeable about the needs of their respective constituents and the priority to be given each project.
The Issues

The respondents urge the Court to dismiss the petition for its failure to establish factual and legal basis to support its claims, thereby
lacking an essential requisite of judicial review—an actual case or controversy.
The Court’s Ruling

To the Court, the case boils down to these issues: 1) whether or not the mandatory requisites for the exercise of judicial review are
met in this case; and 2) whether or not the implementation of PDAF by the Members of Congress is unconstitutional and illegal.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be
an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[16]

An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally
concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not
occur at all. Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision;
and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is
generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it.[17]

In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and taxpayers. According
to LAMP, the practice ofdirect allocation and release of funds to the Members of Congress and the authority given to them to
propose and select projects is the core of the law’s flawed execution resulting in a serious constitutional transgression involving the
expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be adversely affected by this. A finding of
unconstitutionality would necessarily be tantamount to a misapplication of public funds which, in turn, cause injury or hardship to
taxpayers. This affords “ripeness” to the present controversy.

Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning legislative or
executive action. The possibility of constitutional violations in the implementation of PDAF surely involves the interplay of legal
rights susceptible of judicial resolution. For LAMP, this is the right to recover public funds possibly misapplied by no less than the
Members of Congress. Hence, without prejudice to other recourse against erring public officials, allegations of illegal expenditure of
public funds reflect a concrete injury that may have been committed by other branches of government before the court intervenes.
The possibility that this injury was indeed committed cannot be discounted. The petition complains of illegal disbursement of public
funds derived from taxation and this is sufficient reason to say that there indeed exists a definite, concrete, real or substantial
controversy before the Court.

Anent locus standi, “the rule is that the person who impugns the validity of a statute must have a personal and substantial interest in
the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. [18] The gist of the question of
standing is whether a party alleges “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.”[19] In public suits, the plaintiff, representing the general public, asserts a “public right” in assailing an allegedly illegal
official action. The plaintiff may be a person who is affected no differently from any other person, and could be suing as a “stranger,”
or as a “citizen” or “taxpayer.”[20] Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally
disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law.[21] Of greater import than the damage caused by the illegal expenditure of public
funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. [22]

Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers’ suits is
established. Thus, in the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an invalid or
unconstitutional law, LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works[23] is authority in support of
the petitioner:
In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the
general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal
expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of
public moneys. [11 Am. Jur. 761, Emphasis supplied.]

Lastly, the Court is of the view that the petition poses issues impressed with paramount public interest. The ramification of issues
involving the unconstitutional spending of PDAF deserves the consideration of the Court, warranting the assumption of jurisdiction
over the petition.

Now, on the substantive issue.

The powers of government are generally divided into three branches: the Legislative, the Executive and the Judiciary. Each branch is
supreme within its own sphere being independent from one another and it is this supremacy which enables the courts to determine
whether a law is constitutional or unconstitutional.[24] The Judiciary is the final arbiter on the question of whether or not a branch
of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of
this nature.[25]

With these long-established precepts in mind, the Court now goes to the crucial question: In allowing the direct allocation and
release of PDAF funds to the Members of Congress based on their own list of proposed projects, did the implementation of the PDAF
provision under the GAA of 2004 violate the Constitution or the laws?

The Court rules in the negative.

In determining whether or not a statute is unconstitutional, the Court does not lose sight of the presumption of validity accorded to
statutory acts of Congress. In Fariñas v. The Executive Secretary,[26] the Court held that:
Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and one
which operates no further than may be necessary to effectuate the specific purpose of the law. Every presumption should be
indulged in favor of the constitutionality and the burden of proof is on the party alleging that there is a clear and unequivocal
breach of the Constitution.

To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful, breach of the
Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain legislation because
“to invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only of the legislature that passed it but
also of the executive which approved it.”[27] This presumption of constitutionality can be overcome only by the clearest showing that
there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the
Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down. [28]

The petition is miserably wanting in this regard. LAMP would have the Court declare the unconstitutionality of the PDAF’s
enforcement based on the absence of express provision in the GAA allocating PDAF funds to the Members of Congress and the
latter’s encroachment on executive power in proposing and selecting projects to be funded by PDAF. Regrettably, these allegations
lack substantiation. No convincing proof was presented showing that, indeed, there were direct releases of funds to the Members
of Congress, who actually spend them according to their sole discretion. Not even a documentation of the disbursement of funds by
the DBM in favor of the Members of Congress was presented by the petitioner to convince the Court to probe into the truth of their
claims. Devoid of any pertinent evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common
exercise of unscrupulous Members of Congress, the Court cannot indulge the petitioner’s request for rejection of a law which is
outwardly legal and capable of lawful enforcement. In a case like this, the Court’s hands are tied in deference to the presumption of
constitutionality lest the Court commits unpardonable judicial legislation. The Court is not endowed with the power of clairvoyance
to divine from scanty allegations in pleadings where justice and truth lie. [29] Again, newspaper or electronic reports showing the
appalling effects of PDAF cannot be appreciated by the Court, “not because of any issue as to their truth, accuracy, or impartiality,
but for the simple reason that facts must be established in accordance with the rules of evidence.” [30]

Hence, absent a clear showing that an offense to the principle of separation of powers was committed, much less tolerated by both
the Legislative and Executive, the Court is constrained to hold that a lawful and regular government budgeting and appropriation
process ensued during the enactment and all throughout the implementation of the GAA of 2004. The process was explained in this
wise, in Guingona v. Carague:[31]
1. Budget preparation. The first step is essentially tasked upon the Executive Branch and covers the estimation of government
revenues, the determination of budgetary priorities and activities within the constraints imposed by available revenues and
by borrowing limits, and the translation of desired priorities and activities into expenditure levels.

Budget preparation starts with the budget call issued by the Department of Budget and Management. Each agency is required to
submit agency budget estimates in line with the requirements consistent with the general ceilings set by the Development Budget
Coordinating Council (DBCC).

With regard to debt servicing, the DBCC staff, based on the macro-economic projections of interest rates (e.g. LIBOR rate) and
estimated sources of domestic and foreign financing, estimates debt service levels. Upon issuance of budget call, the Bureau of
Treasury computes for the interest and principal payments for the year for all direct national government borrowings and other
liabilities assumed by the same.

2. Legislative authorization. –– At this stage, Congress enters the picture and deliberates or acts on the budget proposals of the
President, and Congress in the exercise of its own judgment and wisdom formulates an appropriation act precisely following the
process established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an
appropriation made by law.

xxx

3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the various operational aspects of
budgeting. The establishment of obligation authority ceilings, the evaluation of work and financial plans for individual activities, the
continuing review of government fiscal position, the regulation of funds releases, the implementation of cash payment schedules,
and other related activities comprise this phase of the budget cycle.

4. Budget accountability. The fourth phase refers to the evaluation of actual performance and initially approved work targets,
obligations incurred, personnel hired and work accomplished are compared with the targets set at the time the agency budgets
were approved.

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that appropriation bills
originate exclusively in the House of Representatives with the option of the Senate to propose or concur with amendments. [32] While
the budgetary process commences from the proposal submitted by the President to Congress, it is the latter which concludes the
exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes.
Like any other piece of legislation, the appropriation act may then be susceptible to objection from the branch tasked to implement
it, by way of a Presidential veto. Thereafter, budget execution comes under the domain of the Executive branch which deals with
the operational aspects of the cycle including the allocation and release of funds earmarked for various projects. Simply put, from
the regulation of fund releases, the implementation of payment schedules and up to the actual spending of the funds specified in
the law, the Executive takes the wheel. “The DBM lays down the guidelines for the disbursement of the fund. The Members of
Congress are then requested by the President to recommend projects and programs which may be funded from the PDAF. The list
submitted by the Members of Congress is endorsed by the Speaker of the House of Representatives to the DBM, which reviews and
determines whether such list of projects submitted are consistent with the guidelines and the priorities set by the Executive.”[33]
This demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per se of
the budget.

As applied to this case, the petition is seriously wanting in establishing that individual Members of Congress receive and thereafter
spend funds out of PDAF. Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and
conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution. Moreover, the
authority granted the Members of Congress to propose and select projects was already upheld inPhilconsa. This remains as valid
case law. The Court sees no need to review or reverse the standing pronouncements in the said case. So long as there is no showing
of a direct participation of legislators in the actual spending of the budget, the constitutional boundaries between the Executive and
the Legislative in the budgetary process remain intact.

While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated by a piece of valid legislation cannot
be used as a tool to overstep constitutional limits and arbitrarily annul acts of Congress. Again, “all presumptions are indulged in
favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable
doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which
supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the
wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted.”[34]

There can be no question as to the patriotism and good motive of the petitioner in filing this petition. Unfortunately, the petition
must fail based on the foregoing reasons.

WHEREFORE, the petition is DISMISSED without pronouncement as to costs.

SO ORDERED.
 EN BANC
[ G.R. No. 200242, July 17, 2012 ]
CHIEF JUSTICE RENATO C. CORONA, PETITIONER, VS. SENATE OF THE PHILIPPINES SITTING AS AN IMPEACHMENT COURT, BANK
OF THE PHILIPPINE ISLANDS, PHILIPPINE SAVINGS BANK, ARLENE "KAKA" BAG-AO, GIORGIDI AGGABAO, MARILYN
PRIMICIASAGABAS, NIEL TUPAS, RODOLFO FARINAS, SHERWIN TUGNA, RAUL DAZA, ELPIDIO BARZAGA, REYNALDO UMALI, NERI
COLMENARES (ALSO KNOWN AS THE PROSECUTORS FROM THE HOUSE OF REPRESENTATIVES), RESPONDENTS.

RESOLUTION
VILLARAMA, JR., J.:
Before this Court is a petition for certiorari and prohibition with prayer for immediate issuance of temporary restraining order (TRO)
and writ of preliminary injunction filed by the former Chief Justice of this Court, Renato C. Corona, assailing the impeachment case
initiated by the respondent Members of the House of Representatives (HOR) and trial being conducted by respondent Senate of the
Philippines.

On December 12, 2011, a caucus was held by the majority bloc of the HOR during which a verified complaint for impeachment
against petitioner was submitted by the leadership of the Committee on Justice. After a brief presentation, on the same day, the
complaint was voted in session and 188 Members signed and endorsed it, way above the one-third vote required by the
Constitution.

On December 13, 2011, the complaint was transmitted to the Senate which convened as an impeachment court the following day,
December 14, 2011.

On December 15, 2011, petitioner received a copy of the complaint charging him with culpable violation of the Constitution,
betrayal of public trust and graft and corruption, allegedly committed as follows:
ARTICLE I

RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS TRACK RECORD MARKED BY PARTIALITY AND SUBSERVIENCE IN CASES
INVOLVING THE ARROYO ADMINISTRATION FROM THE TIME OF HIS APPOINTMENT AS SUPREME COURT JUSTICE AND UNTIL HIS
DUBIOUS APPOINTMENT AS A MIDNIGHT CHIEF JUSTICE TO THE PRESENT.
ARTICLE II

RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED
TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES AND NET WORTH AS REQUIRED UNDER SEC. 17, ART. XI OF THE
1987 CONSTITUTION.
2.1. It is provided for in Art. XI, Section 17 of the 1987 Constitution that “a public officer or employee shall, upon assumption of
office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In
the case of the President, the Vice-President, the Members of the Cabinet, and other constitutional offices, and officers of the
armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”
2.2. Respondent failed to disclose to the public his statement of assets, liabilities, and net worth as required by the Constitution.

2.3. It is also reported that some of the properties of Respondent are not included in his declaration of his assets, liabilities, and net
worth, in violation of the anti-graft and corrupt practices act.

2.4. Respondent is likewise suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values and
keeping bank accounts with huge deposits. It has been reported that Respondent has, among others, a 300-sq. meter apartment in a
posh Mega World Property development at the Fort in Taguig. Has he reported this, as he is constitutionally-required under Art. XI,
Sec. 17 of the Constitution in his Statement of Assets and Liabilities and Net Worth (SALN)? Is this acquisition sustained and duly
supported by his income as a public official? Since his assumption as Associate and subsequently, Chief Justice, has he complied with
this duty of public disclosure?

ARTICLE III
RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST BY FAILING TO
MEET AND OBSERVE THE STRINGENT STANDARDS UNDER ART. VIII, SECTION 7 (3) OF THE CONSTITUTION THAT PROVIDES THAT “[A]
MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE” IN
ALLOWING THE SUPREME COURT TO ACT ON MERE LETTERS FILED BY A COUNSEL WHICH CAUSED THE ISSUANCE OF FLIP-FLOPPING
DECISIONS IN FINAL AND EXECUTORY CASES; IN CREATING AN EXCESSIVE ENTANGLEMENT WITH MRS. ARROYO THROUGH HER
APPOINTMENT OF HIS WIFE TO OFFICE; AND IN DISCUSSING WITH LITIGANTS REGARDING CASES PENDING BEFORE THE SUPREME
COURT.
ARTICLE IV
RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION WHEN HE
BLATANTLY DISREGARDED THE PRINCIPLE OF SEPARATION OF POWERS BY ISSUING A “STATUS QUO ANTE” ORDER AGAINST THE
HOUSE OF REPRESENTATIVES IN THE CASE CONCERNING THE IMPEACHMENT OF THEN OMBUDSMAN MERCEDITAS NAVARRO-
GUTIERREZ.
ARTICLE V
RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH WANTON ARBITRARINESS AND PARTIALITY IN CONSISTENTLY DISREGARDING
THE PRINCIPLE OF RES JUDICATA IN THE CASES INVOLVING THE 16 NEWLY-CREATED CITIES, AND THE PROMOTION OF DINAGAT
ISLAND INTO A PROVINCE.
ARTICLE VI
RESPONDENT BETRAYED THE PUBLIC TRUST BY ARROGATING UNTO HIMSELF, AND TO A COMMITTEE HE CREATED, THE AUTHORITY
AND JURISDICTION TO IMPROPERLY INVESTIGATE A JUSTICE OF THE SUPREME COURT FOR THE PURPOSE OF EXCULPATING HIM.
 SUCH AUTHORITY AND JURISDICTION IS PROPERLY REPOSED BY THE CONSTITUTION IN THE HOUSE OF REPRESENTATIVES VIA
IMPEACHMENT.
ARTICLE VII
RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS PARTIALITY IN GRANTING A TEMPORARY RESTRAINING ORDER (TRO) IN
FAVOR OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO AND HER HUSBAND JOSE MIGUEL ARROYO IN ORDER TO GIVE THEM
AN OPPORTUNITY TO ESCAPE PROSECUTION AND TO FRUSTRATE THE ENDS OF JUSTICE, AND IN DISTORTING THE SUPREME COURT
DECISION ON THE EFFECTIVITY OF THE TRO IN VIEW OF A CLEAR FAILURE TO COMPLY WITH THE CONDITIONS OF THE SUPREME
COURT’S OWN TRO.
ARTICLE VIII
RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED AND REFUSED TO
ACCOUNT FOR THE JUDICIARY DEVELOPMENT FUND (JDF) AND SPECIAL ALLOWANCE FOR THE JUDICIARY (SAJ) COLLECTIONS. [1]

On December 26, 2011, petitioner filed his Answer[2] assailing the “blitzkrieg” fashion by which the impeachment complaint was
signed by the Members of the HOR and immediately transmitted to the Senate. Citing previous instances when President Aquino
openly expressed his rejection of petitioner’s appointment as Chief Justice and publicly attacked this Court under the leadership of
petitioner for “derailing his administration’s mandate,” petitioner concluded that the move to impeach him was the handiwork of
President Aquino’s party mates and supporters, including “hidden forces” who will be benefited by his ouster. As to the charges
against him, petitioner denied the same but admitted having once served the Offices of the President and Vice-President during the
term of former President Gloria Macapagal-Arroyo and granted the request for courtesy call only to Mr. Dante Jimenez of the
Volunteers Against Crime and Corruption (VACC) while Mr. Lauro Vizconde appeared with Mr. Jimenez without prior permission or
invitation. Petitioner argued at length that the acts, misdeeds or offenses imputed to him were either false or baseless, and
otherwise not illegal nor improper. He prayed for the outright dismissal of the complaint for failing to meet the requirements of the
Constitution or that the Impeachment Court enter a judgment of acquittal for all the articles of impeachment.

Meanwhile, the prosecution panel composed of respondent Representatives held a press conference revealing evidence which
supposedly support their accusations against petitioner. The following day, newspapers carried front page reports of high-priced
condominium units and other real properties in Fort Bonifacio, Taguig and Quezon City allegedly owned by petitioner, as disclosed
by prosecutors led by respondent Rep. Niel C. Tupas, Jr. The prosecution told the media that it is possible that these properties were
not included by petitioner in his Statement of Assets, Liabilities and Net Worth (SALN) which had not been made available to the
public. Reacting to this media campaign, Senators scolded the prosecutors reminding them that under the Senate Rules of
Procedure on Impeachment Trials[3] they are not allowed to make any public disclosure or comment regarding the merits of a
pending impeachment case.[4] By this time, five petitions have already been filed with this Court by different individuals seeking to
enjoin the impeachment trial on grounds of improperly verified complaint and lack of due process. On January 16, 2012, respondent
Senate of the Philippines acting as an Impeachment Court, commenced trial proceedings against the petitioner.

Petitioner’s motion for a preliminary hearing was denied. On January 18, 2012, Atty. Enriqueta E. Vidal, Clerk of Court of this Court,
in compliance with a subpoena issued by the Impeachment Court, took the witness stand and submitted the SALNs of petitioner for
the years 2002 to 2010. Other prosecution witnesses also testified regarding petitioner’s SALNs for the previous years (Marianito
Dimaandal, Records Custodian of Malacañang Palace, Atty. Randy A. Rutaquio, Register of Deeds of Taguig and Atty. Carlo V.
Alcantara, Acting Register of Deeds of Quezon City).

In compliance with the directive of the Impeachment Court, the prosecution and defense submitted their respective memoranda on
the question of whether the prosecution may present evidence to prove the allegations in paragraphs 2.3 (failure to report some
properties in SALN) and 2.4 (acquisition of ill-gotten wealth and failure to disclose in SALN such bank accounts with huge deposits
and 300-sq.m. Megaworld property at the Fort in Taguig) under Article II (par. 2.2. refers to petitioner’s alleged failure to disclose to
the public his SALN as required by the Constitution).

On January 27, 2012, the Impeachment Court issued a Resolution [5] which states:
IN SUM, THEREFORE, this Court resolves and accordingly rules:
1. To allow the Prosecution to introduce evidence in support of Paragraphs 2.2 and 2.3 of Article II of the
Articles of Impeachment;
2. To disallow the introduction of evidence in support of Par. 2.4 of the Articles of Impeachment, with
respect to which, this Court shall be guided by and shall rely upon the legal presumptions on the nature of any property or
asset which may be proven to belong to the Respondent Chief Justice as provided under Section 8 of Republic Act No. 3019
and Section 2 of Republic Act No. 1379.
SO ORDERED.[6]

In a subsequent Resolution[7] dated February 6, 2012, the Impeachment Court granted the prosecution’s request for subpoena
directed to the officers of two private banks where petitioner allegedly deposited millions in peso and dollar currencies, as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the majority votes to grant the Prosecution’s Requests for Subpoenae to the responsible
officers of Philippine Savings Bank (PSBank) and Bank of the Philippine Island (BPI), for them to testify and bring and/or produce
before the Court documents on the alleged bank accounts of Chief Justice Corona, only for the purpose of the instant impeachment
proceedings, as follows:

a) The Branch Manager of the Bank of Philippine Islands, Ayala Avenue Branch, 6th Floor, SGV Building, 6758 Ayala Avenue, Makati
City, is commanded to bring before the Senate at 2:00 p.m. on February 8, 2012, the original and certified true copies of the account
opening forms/documents for Bank Account no. 1445-8030-61 in the name of Renato C. Corona and the bank statements showing
the balances of the said account as of December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December
31, 2009 and December 31, 2010.
b) The Branch Manager (and/or authorized representative) of Philippine Savings Bank, Katipunan Branch, Katipunan Avenue, Loyola
Heights, Quezon City, is commanded to bring before the Senate at 2:00 p.m. on February 8, 2012, the original and certified true
copies of the account opening forms/documents for the following bank accounts allegedly in the name of Renato C. Corona, and the
documents showing the balances of the said accounts as of December 31, 2007, December 31, 2008, December 31, 2009 and
December 31, 2010:
089-19100037-3
089-13100282-6
089-121017358
089-121019593
089-121020122
089-121021681
089-141-00712-9
089-141-00746-9
089-14100814-5
089-121-01195-7
SO ORDERED.[8]

On February 8, 2012, PSBank filed a petition for certiorari and prohibition (G.R. No. 200238) seeking to enjoin the Impeachment
Court and the HOR prosecutors from implementing the aforesaid subpoena requiring PSBank thru its authorized representative to
testify and to bring the original and certified true copies of the opening documents for petitioner’s alleged foreign currency
accounts, and thereafter to render judgment nullifying the subpoenas including the bank statements showing the year-end balances
for the said accounts.

On the same day, the present petition was filed arguing that the Impeachment Court committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it: (1) proceeded to trial on the basis of the complaint filed by respondent
Representatives which complaint is constitutionally infirm and defective for lack of probable cause; (2) did not strike out the charges
discussed in Art. II of the complaint which, aside from being a “hodge-podge” of multiple charges, do not constitute allegations in
law, much less ultimate facts, being all premised on suspicion and/or hearsay; assuming arguendo that the retention of Par. 2.3 is
correct, the ruling of the Impeachment Court to retain Par. 2.3 effectively allows the introduction of evidence under Par. 2.3, as
vehicle to prove Par. 2.4 and therefore its earlier resolution was nothing more than a hollow relief, bringing no real protection to
petitioner; (3) allowed the presentation of evidence on charges of alleged corruption and unexplained wealth which violates
petitioner’s right to due process because first, Art. II does not mention “graft and corruption” or unlawfully acquired wealth as
grounds for impeachment, and second, it is clear under Sec. 2, Art. XI of the Constitution that “graft and corruption” is a separate
and distinct ground from “culpable violation of the Constitution” and “betrayal of public trust”; and (4) issued the subpoena for the
production of petitioner’s alleged bank accounts as requested by the prosecution despite the same being the result of an illegal act
(“fruit of the poisonous tree”) considering that those documents submitted by the prosecution violates the absolute confidentiality
of such accounts under Sec. 8 of R.A. No. 6426 (Foreign Currency Deposits Act) which is also penalized under Sec. 10 thereof.

Petitioner thus prayed for the following reliefs:

(a) Immediately upon filing of this Petition, issue a temporary restraining order or a writ of preliminary injunction enjoining: (i) the
proceedings before the Impeachment Court; (ii) implementation of Resolution dated 6 February 2012; (iii) the officers or
representatives of BPI and PSBank from testifying and submitting documents on petitioner’s or his family’s bank accounts; and (iv)
the presentation, reception and admission of evidence on paragraphs 2.3 and 2.4 of the Impeachment Complaint;

(b) After giving due course to the Petition, render judgment:

(i) Declaring the Impeachment Complaint null and void ab initio;

(ii) Prohibiting the presentation, reception and admission of evidence on paragraphs 2.3 and 2.4 of the Impeachment Complaint;

(iii) Annulling the Impeachment Court’s Resolution dated 27 January 2012 and 6 February 2011 [sic], as well as any Subpoenae
issued pursuant thereto; and (iv) Making the TRO and/or writ of preliminary injunction permanent.

Other reliefs, just or equitable, are likewise prayed for.[9]

Petitioner also sought the inhibition of Justices Antonio T. Carpio and Maria Lourdes P. A. Sereno on the ground of partiality, citing
their publicly known “animosity” towards petitioner aside from the fact that they have been openly touted as the likely
replacements in the event that petitioner is removed from office. [10]

On February 9, 2012, this Court issued a TRO in G.R. No. 200238 enjoining the Senate from implementing the Resolution
and subpoena ad testificandum et duces tecum issued by the Senate sitting as an Impeachment Court, both dated February 6, 2012.
The Court further resolved to deny petitioner’s motion for the inhibition of Justices Carpio and Sereno “in the absence of any
applicable compulsory ground and of any voluntary inhibition from the Justices concerned.”

On February 13, 2012, petitioner filed a Supplemental Petition [11] claiming that his right to due process is being violated in the
ongoing impeachment proceedings because certain Senator-Judges have lost the cold neutrality of impartial judges by acting as
prosecutors. Petitioner particularly mentioned Senator-Judge Franklin S. Drilon, whose inhibition he had sought from the
Impeachment Court, to no avail. He further called attention to the fact that despite the Impeachment Court’s January 27, 2012
Resolution which disallowed the introduction of evidence in support of paragraph 2.4 of Article II, from which no motion for
reconsideration would be entertained, “the allies of President Aquino in the Senate abused their authority and continued their
presentation of evidence for the prosecution, without fear of objection”. In view of the persistent efforts of President Aquino’s
Senator-allies to overturn the ruling of Presiding Officer Juan Ponce Enrile that the prosecution could not present evidence on
paragraph 2.4 of Article II -- for which President Aquino even thanked “his senator allies in delivering what the prosecution could
not”-- petitioner reiterates the reliefs prayed for in his petition before this Court.

In the Comment Ad Cautelam Ex Superabundanti[12] filed on behalf of the respondents, the Solicitor General argues that the instant
petition raises matters purely political in character which may be decided or resolved only by the Senate and HOR, with the
manifestation that the comment is being filed by the respondents “without submitting themselves to the jurisdiction of the
Honorable Supreme Court and without conceding the constitutional and exclusive power of the House to initiate all cases of
impeachment and of the Senate to try and decide all cases of impeachment.” Citing the case of Nixon v. United
States,[13] respondents contend that to allow a public official being impeached to raise before this Court any and all issues relative to
the substance of the impeachment complaint would result in an unnecessarily long and tedious process that may even go beyond
the terms of the Senator- Judges hearing the impeachment case. Such scenario is clearly not what the Constitution intended.

Traversing the allegations of the petition, respondents assert that the Impeachment Court did not commit any grave abuse of
discretion; it has, in fact, been conducting the proceedings judiciously. Respondents maintain that subjecting the ongoing
impeachment trial to judicial review defeats the very essence of impeachment. They contend that the constitutional command of
public accountability to petitioner and his obligation to fully disclose his assets, liabilities and net worth prevail over his claim of
confidentiality of deposits; hence, the subpoena subject of this case were correctly and judiciously issued. Considering that the
ongoing impeachment proceedings, which was initiated and is being conducted in accordance with the Constitution, simply aims to
enforce the principle of public accountability and ensure that the transgressions of impeachable public officials are corrected, the
injury being claimed by petitioner allegedly resulting from the impeachment trial has no factual and legal basis. It is thus prayed that
the present petition, as well as petitioner’s prayer for issuance of a TRO/preliminary injunction, be dismissed.

The core issue presented is whether the certiorari jurisdiction of this Court may be invoked to assail matters or incidents arising from
impeachment proceedings, and to obtain injunctive relief for alleged violations of right to due process of the person being tried by
the Senate sitting as Impeachment Court.
Impeachment and Judicial Review

Impeachment, described as “the most formidable weapon in the arsenal of democracy,”[14] was foreseen as creating divisions,
partialities and enmities, or highlighting pre-existing factions with the greatest danger that “the decision will be regulated more by
the comparative strength of parties, than by the real demonstrations of innocence or guilt.”[15] Given their concededly political
character, the precise role of the judiciary in impeachment cases is a matter of utmost importance to ensure the effective
functioning of the separate branches while preserving the structure of checks and balance in our government. Moreover, in this
jurisdiction, the acts of any branch or instrumentality of the government, including those traditionally entrusted to the political
departments, are proper subjects of judicial review if tainted with grave abuse or arbitrariness.

Impeachment refers to the power of Congress to remove a public official for serious crimes or misconduct as provided in the
Constitution. A mechanism designed to check abuse of power, impeachment has its roots in Athens and was adopted in the United
States (US) through the influence of English common law on the Framers of the US Constitution.

Our own Constitution’s provisions on impeachment were adopted from the US Constitution. Petitioner was impeached through the
mode provided under Art. XI, par. 4, Sec. 3, in a manner that he claims was accomplished with undue haste and under a complaint
which is defective for lack of probable cause. Petitioner likewise assails the Senate in proceeding with the trial under the said
complaint, and in the alleged partiality exhibited by some Senator-Judges who were apparently aiding the prosecution during the
hearings.

On the other hand, respondents contend that the issues raised in the Supplemental Petition regarding the behavior of certain
Senator-Judges in the course of the impeachment trial are issues that do not concern, or allege any violation of, the three express
and exclusive constitutional limitations on the Senate’s sole power to try and decide impeachment cases. They argue that unless
there is a clear transgression of these constitutional limitations, this Court may not exercise its power of expanded judicial review
over the actions of Senator-Judges during the proceedings. By the nature of the functions they discharge when sitting as an
Impeachment Court, Senator- Judges are clearly entitled to propound questions on the witnesses, prosecutors and counsel during
the trial. Petitioner thus failed to prove any semblance of partiality on the part of any Senator-Judges. But whether the Senate
Impeachment Rules were followed or not, is a political question that is not within this Court’s power of expanded judicial review.

In the first impeachment case decided by this Court, Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.[16] we ruled that the power of judicial review in this jurisdiction includes the power of review over
justiciable issues in impeachment proceedings. Subsequently, in Gutierrez v. House of Representatives Committee on Justice,[17] the
Court resolved the question of the validity of the simultaneous referral of two impeachment complaints against petitioner
Ombudsman which was allegedly a violation of the due process clause and of the one- year bar provision.

On the basis of these precedents, petitioner asks this Court to determine whether respondents committed a violation of the
Constitution or gravely abused its discretion in the exercise of their functions and prerogatives that could translate as lack or excess
of jurisdiction, which would require corrective measures from the Court.
Mootness

In the meantime, the impeachment trial had been concluded with the conviction of petitioner by more than the required majority
vote of the Senator-Judges. Petitioner immediately accepted the verdict and without any protest vacated his office. In fact, the
Judicial and Bar Council is already in the process of screening applicants and nominees, and the President of the Philippines is
expected to appoint a new Chief Justice within the prescribed 90-day period from among those candidates shortlisted by the JBC.
Unarguably, the constitutional issue raised by petitioner had been mooted by supervening events and his own acts.

An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof
would be without practical use and value.[18] In such cases, there is no actual substantial relief to which the petitioner would be
entitled to and which would be negated by the dismissal of the petition.[19]

WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is DISMISSED on the ground
of MOOTNESS.

No pronouncement as to costs.

SO ORDERED.
 EN BANC
[ A.M. No. 10-7-17-SC, February 08, 2011 ]
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.

RESOLUTION
PER CURIAM:
Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court
dated October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice
Mariano Del Castillo in connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo.[1]

Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines.
This claim is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term.

Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is "to steal and pass off
as one's own" the ideas or words of another. Stealing implies malicious taking. Black's Law Dictionary, the world's leading English
law dictionary quoted by the Court in its decision, defines plagiarism as the "deliberate and knowing presentation of another
person's original ideas or creative expressions as one's own."[2] The presentation of another person's ideas as one's own must be
deliberate or premeditated--a taking with ill intent.

There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere
accident or in good faith.

Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of
Academic Integrity ordains that "plagiarism is identified not through intent but through the act itself. The objective act of falsely
attributing to one's self what is not one's work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has
occurred. Students who plead ignorance or appeal to lack of malice are not excused." [3]

But the Court's decision in the present case does not set aside such norm. The decision makes this clear, thus:
To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer's thesis, the
judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and
related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a
decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from. [4]

Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations
embodying results of original research, substantiating a specific view.[5] This must be so since the writing is intended to earn for the
student an academic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their
dissertations, and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy.

But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the
nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning
of plagiarism. Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of
others, certain schools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective
evidence of plagiarism. Surely, however, if on its face the student's work shows as a whole that he has but committed an obvious
mistake or a clerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his
diploma.

In contrast, decisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes
is a service rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of
flesh and blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected.
The interest of society in written decisions is not that they are originally crafted but that they are fair and correct in the context of
the particular disputes involved. Justice, not originality, form, and style, is the object of every decision of a court of law.

There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique
language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws
include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this
doctrine, Courts are "to stand by precedent and not to disturb settled point." Once the Court has "laid down a principle of law as
applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the
same; regardless of whether the parties or property are the same."[6]

And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or
even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or
annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories
or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and
tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the
originators.

Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which
include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be
affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of
committing some wrong or incurring some liability. Thus:
The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the
way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the
words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be
sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed
to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by
anyone.[7]

The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As
Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing
Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or
phrases from a law review article, novel thoughts published in a legal periodical or language from a party's brief are used without
giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them,
without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not
writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating
cases are not subject to a claim of legal plagiarism.[8]

If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S.
Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found
in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by
magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with
them, the municipal trial courts and other first level courts. Never in the judiciary's more than 100 years of history has the lack of
attribution been regarded and demeaned as plagiarism.

This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting
facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be
resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then
draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before
the Court. These efforts, reduced in writing, are the product of the judges' creativity. It is here--actually the substance of their
decisions--that their genius, originality, and honest labor can be found, of which they should be proud.

In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done.
He identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the
law relevant to their resolution. It was here that he drew materials from various sources, including the three foreign authors cited in
the charges against him. He compared the divergent views these present as they developed in history. He then explained why the
Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his
discussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was original. He had but
done an honest work.

The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions
to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done.

This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and
administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in
court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not
be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of
assisting the Court in the administration of justice.

As Duncan Webb said:

In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole
sections of a judge's words to lend weight to a particular point either with or without attribution. The words of scholars are also
sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this
place is given to Halsbury's Laws of England which is widely considered authoritative. A lawyer can do little better than to frame
an argument or claim to fit with the articulation of the law in Halsbury's. While in many cases the very purpose of the citation is
to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be
adopted by legal authors, largely without attribution.

xxxx

The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will
depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it.
While over time incremental changes occur, the wholesale abandonment of established expression is generally considered
foolhardy.[9]

The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losing
party. But it is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school
of law, have unfairly maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to
attribute lifted passages from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism
as the world in general knows it.
True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the
decision for the Court in theVinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the
attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and
experienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The
Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like
the dozens of other sources she cited in her research, had high reputations in international law.

Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The
authors concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally
deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier
writings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the
erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not
belong to Justice Del Castillo but to others. He did not pass them off as his own.

With our ruling, the Court need not dwell long on petitioners' allegations that Justice Del Castillo had also committed plagiarism in
writing for the Court his decision in another case, Ang Ladlad v. Commission on Elections.[10] Petitioners are nit-picking. Upon close
examination and as Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact made
attributions to passages in such decision that he borrowed from his sources although they at times suffered in formatting lapses.

Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines for
leave to file and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyo's claim of other
instances of alleged plagiarism in the Vinuya decision.

ACCORDINGLY, the Court DENIES petitioners' motion for reconsideration for lack of merit.

SO ORDERED.

SECOND DIVISION

PEOPLE OF THE G.R. No. 191366

PHILIPPINES,
Plaintiff-Appellee, Present:

CARPIO, J.,Chairperson,
NACHURA,
- versus - PERALTA,
ABAD, and
MENDOZA, JJ.
ARNOLD MARTINEZ Y
ANGELES, EDGAR DIZON
Y FERRER, REZIN MARTINEZ
Y CAROLINO, and RAFAEL
GONZALES Y CUNANAN,
Accused-Appellants.
Promulgated:
December 13, 2010

X ---------------------------------------------------------------------------------------X

DECISION
MENDOZA, J.:

This is an appeal from the August 7, 2009 Decision[1] of the Court of Appeals (CA), in CA-G.R. HC-NO. 03269, which
affirmed the February 13, 2008 Decision[2] of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal Case No.
2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for
Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR
DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN,
 without authority of law, confederating together, acting jointly and helping one another, did then and there
wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in empty
plastic sachets and rolled aluminum foil, during a party, or at a social gathering or meeting, or in the
proximate company of at least two (2) person[s].

Contrary to Section 13, Article II, R.A. 9165.[3]

Version of the Prosecution

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of the
apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears
that on September 2, 2006, at around 12:45 o’clock in the afternoon, PO1 Azardon was on duty at the Police Community
Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a pot session
was going on in the house of accused Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the
report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and
Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of Gonzales
was located.

As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out of the side
door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar
Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were surprised by the presence of the police. In front of
them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of used aluminum
foil.

The accused were arrested and brought to the police precinct. The items found in the room were seized and turned
over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory
examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of
used aluminum foil tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test and,
except for Doria, they were found to be positive for methamphetamine hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of
September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain
Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the painting of said jeep. As they
were going around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him if he noticed a
person pass by. While they were talking, Doria arrived. It was then that five to seven policemen emerged and apprehended
them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were incarcerated and
charged with sniffing shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to evidence.

On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ
y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY
beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or
Meetings defined and penalized under Section 13 in relation to Section 11, Article II of Republic Act 9165, and
each of them is sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of
P500,000.00, and to pay the cost of suit.

The subject items are hereby forfeited in favor of the government and to be disposed of in
accordance with the law.

SO ORDERED.[4]

The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any showing of ill-
motive on his part, prevailed over the defenses of denial and alibi put up by the accused. The accused were held to have been
in constructive possession of the subject items. A conspiracy was also found present as there was a common purpose to
possess the dangerous drug.

The Ruling of the CA

The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession of
the dangerous drugs by the accused. It further held that although the procedure regarding the custody and disposition of
evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and evidentiary value of the
evidence were nonetheless safeguarded. The CA was of the view that the presumption of regularity in the performance of
official duty was not sufficiently controverted by the accused.

Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject
decision, presenting the following

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez

1. The lower court erred in finding the accused-appellants

to be having a pot session at the time of their arrest;

2. The lower court erred in not seeing through the antics of the police to plant the shabu paraphernalia
to justify the arrest of the accused-appellants without warrant;

3. The lower court erred in not finding that the corpus delicti has not been sufficiently established;

4. The lower court erred in not finding the uncorroborated testimony of PO1 Azardon insufficient to
convict the accused-appellants of the crime charged;

5. The lower court erred in not acquitting the accused-appellants.

For accused Rafael Gonzales

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S
FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S
FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to prove the
guilt of the accused. The principal reasons are 1] that the evidence against the accused are inadmissible; and 2] that granting
the same to be admissible, the chain of custody has not been duly established.

Illegal Arrest, Search and Seizure

Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue before
arraignment.[5]However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the
court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during the illegal warrantless arrest.[6]

Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this Court
has the power to correct any error, even if unassigned, if such is necessary in arriving at a just decision, [7] especially when the
transcendental matter of life and liberty is at stake.[8] While it is true that rules of procedure are intended to promote rather
than frustrate the ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and again,
this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of
justice, rather than frustrate it. Technicalities should never be used to defeat substantive rights.[9] Thus, despite the
procedural lapses of the accused, this Court shall rule on the admissibility of the evidence in the case at bench. The clear
infringement of the accused’s right to be protected against unreasonable searches and seizures cannot be ignored.

The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of its citizens as well
as into their houses, papers and effects.[10] Sec. 2, Art. III, of the 1987 Constitution provides:

Section 2. - The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures without warrant.
Arrests and seizures in the following instances are allowed even in the absence of a warrant — (i) warrantless search
incidental to a lawful arrest;[11] (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented
warrantless search; (v) customs search; (vi) stop and frisk; and (vii) exigent and emergency circumstances.[12]

This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search,
both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of
the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with
section 7 of Rule 112.

A review of the facts reveal that the arrest of the accused was illegal and the subject items were confiscated as an
incident thereof. According to the testimony of PO1 Azardon and his Joint Affidavit[13] with PO1 Dela Cruz, they proceeded to,
and entered, the house of accused Gonzales based solely on the report of a concerned citizen that a pot session was going on
in said house, to wit:

Q: I go back to the information referred to you by the informant, did he not tell you how many persons
were actually conducting the pot session?
A: Yes, sir.

Q: When you went to the place of Rafael Gonzales, of course you were not armed with a search warrant,
correct?
A: None, sir.

Q: Before the information was given to you by your alleged informant, you did not know personally
Rafael Gonzales?
A: I have not met [him] yet but I heard his name, sir.

Q: When this informant told you that he was told that there was [an] ongoing pot session in the house of
Rafael Gonzales, was this report to you placed in the police blotter before you proceeded to the
house of Rafael Gonzales?
A: I think it was no longer recorded, sir.

Q: In other words, you did not even bother to get the personal data or identity of the person who told
you that he was allegedly informed that there was an ongoing pot session in the house of Rafael
Gonzales?
A: What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be
identified because he was afraid, sir.

Q: And likewise, he did not inform you who told him that there was an ongoing pot session in the house
of Rafael Gonzales?
A: No more, sir.

Q: But upon receiving such report from that jeepney driver you immediately formed a group and went to
the place of Rafael Gonzales?
A: Yes, sir.

xxx

Q: When you were at the open gate of the premises of Rafael Gonzales, you could not see what is
happening inside the house of Rafael Gonzales?
A: Yes, sir.
 Q: You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the table
while you were outside the premises of the property of Rafael Gonzales?

xxx

Q: Before they entered the premises they could not see the paraphernalia?

COURT: Answer.

A: Of course because they were inside the room, how could we see them, sir.

Q: But still you entered the premises, only because a certain person who told you that he was informed
by another person that there was an ongoing pot session going on inside the house of Rafael
Gonzales?
A: Yes, sir.

Q: And that is the only reason why you barged in inside the house of Rafael Gonzales and you arrested
the persons you saw?
A: Yes, sir.[14]

Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand, may be
applicable and both require probable cause to be present in order for a warrantless arrest to be valid. Probable cause has
been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant
a cautious man’s belief that the person accused is guilty of the offense with which he is charged.[15]

Although this Court has ruled in several dangerous drugs cases[16] that tipped information is sufficient probable cause
to effect a warrantless search,[17] such rulings cannot be applied in the case at bench because said cases involve either a buy-
bust operation or drugs in transit, basically, circumstances other than the sole tip of an informer as basis for the arrest. None
of these drug cases involve police officers entering a house without warrant to effect arrest and seizure based solely on an
informer’s tip. The case of People v. Bolasa[18] is informative on this matter.

In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking prohibited
drugs at a certain house. The police immediately proceeded to the house of the suspects. They walked towards the house
accompanied by their informer. When they reached the house, they peeped inside through a small window and saw a man
and woman repacking marijuana. They then entered the house, introduced themselves as police officers, confiscated the drug
paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does not fall under any of the above-
enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge
that at the time of their arrest, accused-appellants had just committed, were committing, or were about to
commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor
did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-
appellants were not prisoners who have escaped from a penal establishment.
Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As
already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on
found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first
through the window before they saw and ascertained the activities of accused-appellants inside the room. In
like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless
search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances,
for the evidence at hand is bereft of any such showing.
On the contrary, it indicates that the apprehending officers should have conducted first a
surveillance considering that the identities and address of the suspected culprits were already ascertained.
After conducting the surveillance and determining the existence of probable cause for arresting accused-
appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest
being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the
illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful
obeisance to the fundamental law.[19]

It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion,
that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by
circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. [20]

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the time of the
arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to
enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the arresting officers had no personal
knowledge of facts and circumstances that would lead them to believe that the accused had just committed an offense. As
admitted in the testimony of PO1 Azardon, the tip originated from a concerned citizen who himself had no personal
knowledge of the information that was reported to the police:

Q: Mr. Witness, you claimed that the reason for apprehending all the accused was based on a tip-off by
an informant?
A: Yes, sir.

Q: What exactly [did] that informant tell you?

A: He told us that somebody told him that there was an ongoing pot session in the house of one of the
accused Rafael Gonzales, sir.

Q: You mean to say that it was not the informant himself to whom the information originated but from
somebody else?
A: That was what he told me, sir.

Q: Because of that you proceeded to where the alleged pot session was going on? [No Answer]

Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going on?
A: No more because he did not go with us, sir.

Q: So you merely relied on what he said that something or a pot session was going on somewhere in
Arellano but you don’t know the exact place where the pot session was going on?
A: Yes, sir.

Q: And your informant has no personal knowledge as to the veracity of the alleged pot session because
he claimed that he derived that information from somebody else?
A: This is what he told us that somebody told him that there was an ongoing pot session, sir.

Q: Despite of [sic] that information you proceeded to where?

A: Trinidad Subdivision, sir.

xxx

Q: Mr. Witness, did your informant named [sic] those included in the alleged pot session?
A: No, sir.

Q: That was, because your informant don’t [sic] know physically what was really happening there?
A: He was told by another person that there was an ongoing pot session there, sir.[21] [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The elements of plainview are: (a) a prior valid
intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b)
the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be
immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search.[22]

The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior
surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the police
officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case
be struck down. Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a
customs search, a stop and frisk, or one under exigent and emergency circumstances.

The apprehending officers should have first conducted a surveillance considering that the identity and address of one
of the accused were already ascertained. After conducting the surveillance and determining the existence of probable cause,
then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing
search as a result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and seizure is
deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.[23] The subject items seized during
the illegal arrest are thus inadmissible. The drug, being the very corpus delicti of the crime of illegal possession of dangerous
drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of the accused.

As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over illegal searches
and seizures in cases where law enforcers are able to present the alleged evidence of the crime, regardless of the methods by
which they were obtained. This attitude tramples on constitutionally-guaranteed rights in the name of law enforcement. It is
ironic that such enforcement of the law fosters the breakdown of our system of justice and the eventual denigration of
society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace
and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the
Constitution and the law.[24]
Chain of Custody

Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order for
failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases.

The accused contend that the identity of the seized drug was not established with moral certainty as the chain of
custody appears to be questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and
Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They
argue that there was no prior coordination with the Philippine Drug Enforcement Agency (PDEA), no inventory of the
confiscated items conducted at the crime scene, no photograph of the items taken, no compliance with the rule requiring the
accused to sign the inventory and to give them copies thereof, and no showing of how the items were handled from the time
of confiscation up to the time of submission to the crime laboratory for testing. Therefore, the corpus delicti was not proven,
thereby producing reasonable doubt as to their guilt. Thus, they assert that the presumption of innocence in their favor was
not overcome by the presumption of regularity in the performance of official duty.

The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of the
dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused freely and consciously possessed the
dangerous drug.[25] Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an additional element of the
crime is (iv) the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in
the proximate company of at least two (2) persons.

The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a
conditionsine qua non for conviction. In order to establish the existence of the drug, its chain of custody must be sufficiently
established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are
removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the
forensic chemist, and finally to the court.[26] Malillin v. People was the first in a growing number of cases to explain the
importance of chain of custody in dangerous drugs cases, to wit:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the moment the
item was picked up to the time it is offered into evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received, where it was and what happened to it while in
the witness' possession, the condition in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the precautions taken to ensure that there
had been no change in the condition of the item and no opportunity for someone not in the chain to have
possession of the same.[27]

Section 1(b) of DDB Regulation No. 1, Series of 2002,[28] defines chain of custody as follows:

b. “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the
time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of seized item shall include the identity and signature of
the person who held temporary custody of the seized item, the date and time when such transfer of custody
were made in the course of safekeeping and used in court as evidence, and the final
disposition;

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the identity and
integrity of dangerous drugs seized, to wit:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the
following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof.
 People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in
dangerous drugs cases in order to ensure their identity and integrity, as follows:

Usually, the police officer who seizes the suspected substance turns it over to a supervising officer,
who would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that
possession of the substance changes hand a number of times, it is imperative for the officer who seized the
substance from the suspect to place his marking on its plastic container and seal the same, preferably with
adhesive tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer
can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches
the crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and seal the same. In this
way the substance would assuredly reach the laboratory in the same condition it was seized from the
accused. Further, after the laboratory technician tests and verifies the nature of the substance in the
container, he should put his own mark on the plastic container and seal it again with a new seal since the
police officer’s seal has been broken. At the trial, the technician can then describe the sealed condition of
the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve
its integrity.

If the sealing of the seized substance has not been made, the prosecution would have to present
every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no
matter how briefly one’s possession has been. Each of them has to testify that the substance, although
unsealed, has not been tampered with or substituted while in his care.[29]

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and provides for,
the possibility of non-compliance with the prescribed procedure:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in
case of warrantless seizures; Provided, further that non-compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure and
custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance, and (ii) the
integrity and evidentiary value of the seized items are properly preserved. In this case, however, no justifiable ground is found
availing, and it is apparent that there was a failure to properly preserve the integrity and evidentiary value of the seized items
to ensure the identity of thecorpus delicti from the time of seizure to the time of presentation in court. A review of the
testimonies of the prosecution witnesses and the documentary records of the case reveals irreparably broken links in the
chain of custody.

According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the accused, to
wit:

a) Several pcs of used empty plastic sachets containing suspected shabu residues.

b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one (1) pc
colored green & one (1) pc colored white ).

c) Several pcs of used rolled aluminum foil containing suspected shabu residues.

d) Several pcs of used cut aluminum foil containing suspected shabu residues.

e) One (1) pc glass tube containing suspected shabu residues.[30]

[Emphases supplied]

At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty Investigator
Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.[31] A letter-request for laboratory examination
was prepared by Police Superintendent Edgar Orduna Basbag for the following items:
 a) Pieces of used empty small plastic sachets with suspected shabu residues marked “DC&A-1.”

b) Pieces of used rolled and cut aluminum foil with suspected shabu residues marked “DC&A-2.”

c) Pieces of used cut aluminum foil with suspected shabu residues marked “DC&A-3.”[32]
[Emphases supplied]

The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3
Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to wit:

SPECIMENS SUBMITTED:

A – A1 to A115 – One Hundred fifteen (115) open transparent plastic sachet with tag each containing
suspected shabu residuewithout markings.

B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag each containing suspected shabu
residue without markings.

C – C1 to C49 – Forty-nine (49) used aluminum foil with tag each containing suspected shabu residue without
markings.[33]
[Emphases supplied]

Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was issued by PO1
Azardon and PO1 Dela Cruz, which reads:

DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct
supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel
Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of
ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON
Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y
CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39
yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y
CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city.

Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police
Station, PerezMarket Site Dagupan City and indorsed to Duty Desk Officer to record the incident and the
sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan for
Laboratory Examination.

Seizing Officer:

(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant

Remarks:

Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed[34]
[Emphases supplied]

The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used
aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court and marked
as Exhibits “H” and series, “I” and series, and “J” and series, respectively. Said items were identified by PO1 Azardon and
P/Insp. Maranion at the witness stand.[35]
 The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was
sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime laboratory for
examination, as shown in the Confiscation Receipt and the letter-request for laboratory examination.

A review of the chain of custody indicates, however, that the CA is mistaken.

First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure and confiscation of the
subject items, no physical inventory was conducted in the presence of the accused, or their representative or counsel, a
representative from the media and the DOJ, and any elected public official. Thus, no inventory was prepared, signed, and
provided to the accused in the manner required by law. PO1 Azardon, in his testimony,[36] admitted that no photographs were
taken. The only discernable reason proffered by him for the failure to comply with the prescribed procedure was that the
situation happened so suddenly. Thus:

Q: But upon receiving such report from that jeepney driver you immediately formed a group and went to
the place of Rafael Gonzales?
A: Yes, sir.

Q: Such that you did not even inform the PDEA before you barged in that place of Rafael Gonzales?
A: It was so suddenly, [sic] sir.

Q: And that explains the reason why you were not able to have pictures taken, is that correct?
A: Yes, sir.[37]
[Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of the situation
cannot justify non-compliance with the requirements. The police officers were not prevented from preparing an inventory and
taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures,
the inventory and photographs shall be done at the nearest police station or at the nearest office of the apprehending
officer/team. Whatever effect the suddenness of the situation may have had should have dissipated by the time they reached
the police station, as the suspects had already been arrested and the items seized. Moreover, it has been held that in case of
warrantless seizures nothing prevents the apprehending officer from immediately conducting the physical inventory and
photography of the items at their place of seizure, as it is more in keeping with the law’s intent to preserve their integrity and
evidentiary value.[38]

This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165,
resulting in the failure to properly preserve the integrity and evidentiary value of the seized items. Some cases are People v.
Garcia,[39]People v. Dela Cruz,[40] People v. Dela Cruz,[41] People v. Santos, Jr.,[42] People v. Nazareno,[43] People v.
Orteza,[44]Zarraga v. People,[45] and People v. Kimura.[46]

Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the requirement
of marking, to wit:

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of
"marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension
is the same evidence subjected to inventory and photography when these activities are undertaken at the
police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the
"marking" of the seized items - to truly ensure that they are the same items that enter the chain and are
eventually the ones offered in evidence - should be done (1) in the presence of the apprehended
violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons
from dubious and concocted searches, and of protecting as well the apprehending officers from harassment
suits based on planting of evidence under Section 29 and on allegations of robbery or theft.

For greater specificity, "marking" means the placing by the apprehending officer or the poseur-
buyer of his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed
in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of
handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer
and turned over to the next officer in the chain of custody.[47] [Emphasis in the original]

Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that the subject
items were at all marked. It was only in the letter-request for laboratory examination that the subject items were indicated to
have been marked with “DC&A-1,” “DC&A-2” and “DC&A-3.” There is no showing, however, as to who made those markings
and when they were made. Moreover, those purported markings were never mentioned when the subject items were
identified by the prosecution witnesses when they took the stand.

The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut aluminium foil, and
cut aluminium foil, but do not specifically pertain to any individual item in each group. Furthermore, it was only in the
Chemistry Report[48] that the precise number of each type of item was indicated and enumerated. The Court notes that in all
documents prior to said report, the subject items were never accurately quantified but only described as “pieces,” [49] “several
pcs,”[50] and “shabu paraphernallas.”[51] Strangely, the Chemistry Report indicates that all the subject items had “no
markings,” although each item was reported to have been marked by P/Insp. Maranion in the course of processing the subject
items during laboratory examination and testing.[52] Doubt, therefore, arises as to the identity of the subject items. It cannot
be determined with moral certainty that the subject items seized from the accused were the same ones subjected to the
laboratory examination and presented in court.

This Court has acquitted the accused for the failure and irregularity in the marking of seized items in dangerous drugs
cases, such as Zarraga v. People,[53] People v. Kimura,[54] and People v. Laxa.[55]

Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty.
Instead of being prepared on the day of the seizure of the items, it was prepared only three days after. More important, the
receipt did not even indicate exactly what items were confiscated and their quantity. These are basic information that a
confiscation receipt should provide. The only information contained in the Confiscation Receipt was the fact of arrest of the
accused and the general description of the subject items as “the sachet of suspected Shabu paraphernallas were brought to
the PNP Crime Laboratory.” The receipt is made even more dubious by PO1 Azardon’s admission in his testimony [56] that he
did not personally prepare the Confiscation Receipt and he did not know exactly who did so.

Fourth, according to the Certification[57] issued by the Dagupan Police Station, the subject items were indorsed by PO1
Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition. These were later turned over by SPO3 Esteban to P/Insp.
Maranion. There is, however, no showing of how and when the subject items were transferred from SPO1 Urbano to SPO3
Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the subject
items were kept after they were tested prior to their presentation in court. This Court has highlighted similar shortcomings
in People v. Cervantes,[58] People v. Garcia,[59] People v. Sanchez,[60] and Malillin v. People.[61]

More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1 Azardon’s
testimony[62] that they were tipped off by a concerned citizen while at the police station, the Letter[63] to the Executive
Director of the DDB states that the apprehending officers were tipped off “while conducting monitoring/surveillance.” Said
letter also indicates, as does the Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and
not September 2, 2006, as alleged in the Information. It was also mentioned in the aforementioned Certification of the
Dagupan Police and Joint Affidavit of the police officers that a glass tube suspected to contain shabu residue was also
confiscated from the accused. Interestingly, no glass tube was submitted for laboratory examination.

In sum, numerous lapses and irregularities in the chain of custody belie the prosecution’s position that the integrity
and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by the CA, the
Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly insufficient in proving
the identity of thecorpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof
beyond reasonable doubt of the identity of the prohibited drug is essential before the accused can be found guilty.[64]

Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, in People v. Sta.
Maria,[65]this Court held that said section was silent as to the consequences of such failure, and said silence could not be
interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence obtained pursuant
to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the “lead agency” in the investigation
and prosecution of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar
functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter.

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the admissibility of the
evidence but only its weight.[66] Thus, had the subject items in this case been admissible, their evidentiary merit and probative
value would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to the police officers, the presumption of regularity in the
performance of official duty should prevail. However, such presumption obtains only when there is no deviation from the
regular performance of duty.[67] Where the official act in question is irregular on its face, the presumption of regularity cannot
stand.

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged by
the evidence of a flawed chain of custody, the presumption of regularity cannot prevail over the presumption of innocence of
the accused.[68]

This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to the failure of
law enforcers to observe the proper arrest, search and seizure procedure under the law.[69] Some bona fide arrests and
seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement operatives compromise the
integrity and evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies to exert
greater effort to apply the rules and procedures governing the custody, control, and handling of seized drugs.

It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible. Thus,
as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must be recognized,
addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized
must be shown to have been preserved.[70]

On a final note, this Court takes the opportunity to be instructive on Sec. 11[71] (Possession of Dangerous Drugs) and
[72]
Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This Court
notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for
possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not
incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate
first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The
minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one
day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a
government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to
rehabilitate drug users and provide them with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and
the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained
admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use
of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14[73] (Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or
Meetings). Sec. 14 provides that the maximum penalty under Sec. 12[74] (Possession of Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment,
instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of
four years and a fine of P50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other
paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated
Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and
prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is
only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs.
In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous
drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the
possession of the accused as provided for in Sec. 15.

WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET
ASIDE and another judgment entered ACQUITTING the accused and ordering their immediate release from detention, unless
they are confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate
implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of
this decision the action he has taken. Copies shall also be furnished the Director-General, Philippine National Police, and the
Director-General, Philippine Drugs Enforcement Agency, for their information and guidance.

The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the Dangerous Drugs
Board for destruction in accordance with law.

SO ORDERED
 Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

RODEL LUZ y ONG, G. R. No. 197788

Petitioner,

Present:

CARPIO, J., Chairperson,

BRION,
- versus - PEREZ,
SERENO, and
REYES, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,[1]
Respondent. February 29, 2012

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

DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA) Decision in CA-
G.R. CR No. 32516 dated 18 February 2011[2] and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police Station
as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 o’clock in the morning, he
saw the accused, who was coming from the direction of Panganiban Drive and going to Diversion Road, Naga
City, driving a motorcycle without a helmet; that this prompted him to flag down the accused for violating a
municipal ordinance which requires all motorcycle drivers to wear helmet (sic) while driving said motor
vehicle; that he invited the accused to come inside their sub-station since the place where he flagged down
the accused is almost in front of the said sub-station; that while he and SPO1 Rayford Brillante were issuing a
citation ticket for violation of municipal ordinance, he noticed that the accused was uneasy and kept on
getting something from his jacket; that he was alerted and so, he told the accused to take out the contents of
the pocket of his jacket as the latter may have a weapon inside it; that the accused obliged and slowly put out
the contents of the pocket of his jacket which was a nickel-like tin or metal container about two (2) to three
(3) inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife; that upon
seeing the said container, he asked the accused to open it; that after the accused opened the container, he
noticed a cartoon cover and something beneath it; and that upon his instruction, the accused spilled out the
contents of the container on the table which turned out to be four (4) plastic sachets, the two (2) of which
were empty while the other two (2) contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of “Not guilty” to the charge of illegal
possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the prosecution. On the other
hand, petitioner testified for himself and raised the defense of planting of evidence and extortion.
In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal possession of dangerous drugs[5] committed
on 10 March 2003. It found the prosecution evidence sufficient to show that he had been lawfully arrested for a traffic
violation and then subjected to a valid search, which led to the discovery on his person of two plastic sachets later found to
contain shabu. The RTC also found his defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The
dispositive portion of its Decision held:
WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and sentencing
him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years and (1) day, as
minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand Pesos
(₱300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for
its proper disposition and destruction in accordance with law.
SO ORDERED.[6]
 Upon review, the CA affirmed the RTC’s Decision.
On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari dated 1 September
2011. In a Resolution dated 12 October 2011, this Court required respondent to file a comment on the Petition. On 4 January
2012, the latter filed its Comment dated 3 January 2012.
Petitioner raised the following grounds in support of his Petition:
(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID.
(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE OFFICER
CANNOT BE RELIED UPON IN THIS CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS BEEN
COMPROMISED.
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE REASONABLE
DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He claims that the
finding that there was a lawful arrest was erroneous, since he was not even issued a citation ticket or charged with violation of
the city ordinance. Even assuming there was a valid arrest, he claims that he had never consented to the search conducted
upon him.
On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:
It is beyond dispute that the accused was flagged down and apprehended in this case by Police
Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the use of
crash helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing penalties for
violation thereof. The accused himself admitted that he was not wearing a helmet at the time when he was
flagged down by the said police officers, albeit he had a helmet in his possession. Obviously, there is legal
basis on the part of the apprehending officers to flag down and arrest the accused because the latter was
actually committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. In other
words, the accused, being caught in flagrante delicto violating the said Ordinance, he could therefore be
lawfully stopped or arrested by the apprehending officers. x x x.[8]

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal cases, an appeal
throws the entire case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed
judgment, or even reverse the trial court’s decision based on grounds other than those that the parties raised as errors.[9]
First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he was
not,ipso facto and solely for this reason, arrested.
Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an
offense.[10] It is effected by an actual restraint of the person to be arrested or by that person’s voluntary submission to the
custody of the one making the arrest. Neither the application of actual force, manual touching of the body, or physical
restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the
parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief and impression that
submission is necessary.[11]
Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic
violation is not the arrest of the offender, but the confiscation of the driver’s license of the latter:
SECTION 29. Confiscation of Driver's License. — Law enforcement and peace officers of other
agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any
regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any provisions of
this Act, confiscate the license of the driver concerned and issue a receipt prescribed and issued by the
Bureau therefor which shall authorize the driver to operate a motor vehicle for a period not exceeding
seventy-two hours from the time and date of issue of said receipt. The period so fixed in the receipt shall not
be extended, and shall become invalid thereafter. Failure of the driver to settle his case within fifteen days
from the date of apprehension will be a ground for the suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the following procedure for flagging down
vehicles during the conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a
general concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the
following, when applicable: x x x
m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation
Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or
any of the vehicle’s occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to have been
“under arrest.” There was no intention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into
custody. Prior to the issuance of the ticket, the period during which petitioner was at the police station may be characterized
merely as waiting time. In fact, as found by the trial court, PO3 Alteza himself testified that the only reason they went to the
police sub-station was that petitioner had been flagged down “almost in front” of that place. Hence, it was only for the sake of
convenience that they were waiting there. There was no intention to take petitioner into custody.
In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length whether the roadside
questioning of a motorist detained pursuant to a routine traffic stop should be considered custodial interrogation. The Court
held that, such questioning does not fall under custodial interrogation, nor can it be considered a formal arrest, by virtue of
the nature of the questioning, the expectations of the motorist and the officer, and the length of time the procedure is
conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop significantly curtails the “freedom of action”
of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime
either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without
permission. x x x
However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized
by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that powered the decision are implicated. Thus, we must
decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free
exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced
“to speak where he would not otherwise do so freely,” Miranda v. Arizona, 384 U. S., at 467. First, detention
of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside
detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light flashing
behind him, are that he will be obliged to spend a short period of time answering questions and waiting while
the officer checks his license and registration, that he may then be given a citation, but that in the end he
most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic
stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the
detainee often is aware that questioning will continue until he provides his interrogators the answers they
seek. See id., at 451.
Second, circumstances associated with the typical traffic stop are not such that the motorist feels
completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed
officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in
combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation
substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some
degree. x x x
In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop,” see
Terry v. Ohio, 392 U. S. 1 (1968),than to a formal arrest. x x x The comparatively nonthreatening character of
detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to
the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that
persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.
xxx xxx xxx
We are confident that the state of affairs projected by respondent will not come to pass. It is settled
that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is
curtailed to a “degree associated with formal arrest.” California v. Beheler, 463 U. S. 1121, 1125 (1983) (per
curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment
that renders him “in custody” for practical purposes, he will be entitled to the full panoply of protections
prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). (Emphasis
supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest questions while
still at the scene of the traffic stop, he was not at that moment placed under custody (such that he should have been apprised
of his Mirandarights), and neither can treatment of this sort be fairly characterized as the functional equivalent of a formal
arrest. Similarly, neither can petitioner here be considered “under arrest” at the time that his traffic citation was being made.
It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure to wear a crash
helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if
the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a
warrantless arrest be made for such an offense.
This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent on the part
of the police officer to deprive the motorist of liberty, or to take the latter into custody, the former may be deemed to have
arrested the motorist. In this case, however, the officer’s issuance (or intent to issue) a traffic citation ticket negates the
possibility of an arrest for the same violation.
Even if one were to work under the assumption that petitioner was deemed “arrested” upon being flagged down for a
traffic violation and while awaiting the issuance of his ticket, then the requirements for a valid arrest were not complied
with.
This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to inform the
latter of the reason for the arrest and must show that person the warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any statement they might make could be used against
them.[14] It may also be noted that in this case, these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.
In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person apprehended due to
a traffic violation:
The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or
trick captive suspects into confessing, to relieve the “inherently compelling pressures” “generated by the
custodial setting itself,” “which work to undermine the individual’s will to resist,” and as much as possible to
 free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular
confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons
suspected of misdemeanors as they are by questioning of persons suspected of felonies.
If it were true that petitioner was already deemed “arrested” when he was flagged down for a traffic violation and
while he waiting for his ticket, then there would have been no need for him to be arrested for a second time—after the police
officers allegedly discovered the drugs—as he was already in their custody.
Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a lawful
arrest; (ii) search of evidence in “plain view;” (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs
search; (vi) a “stop and frisk” search; and (vii) exigent and emergency circumstances.[15] None of the above-mentioned
instances, especially a search incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in “plain view.” It
was actually concealed inside a metal container inside petitioner’s pocket. Clearly, the evidence was not immediately
apparent.[16]
Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear
and convincing evidence.[17] It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be
unequivocal, specific, intelligently given and uncontaminated by any duress or coercion. While the prosecution claims that
petitioner acceded to the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent
consent. In fact, the RTC found that petitioner was merely “told” to take out the contents of his pocket.[18]
Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the
circumstances. Relevant to this determination are the following characteristics of the person giving consent and the
environment in which consent is given: (1) the age of the defendant; (2) whether the defendant was in a public or a secluded
location; (3) whether the defendant objected to the search or passively looked on; (4) the education and intelligence of the
defendant; (5) the presence of coercive police procedures; (6) the defendant’s belief that no incriminating evidence would be
found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly
vulnerable subjective state of the person consenting. It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and voluntarily given.[19] In this case, all that was alleged
was that petitioner was alone at the police station at three in the morning, accompanied by several police officers. These
circumstances weigh heavily against a finding of valid consent to a warrantless search.
Neither does the search qualify under the “stop and frisk” rule. While the rule normally applies when a police officer
observes suspicious or unusual conduct, which may lead him to believe that a criminal act may be afoot, the stop and frisk is
merely a limited protective search of outer clothing for weapons.[20]
In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for speeding and
correspondingly issues a citation instead of arresting the latter, this procedure does not authorize the officer to conduct a full
search of the car. The Court therein held that there was no justification for a full-blown search when the officer does not
arrest the motorist. Instead, police officers may only conduct minimal intrusions, such as ordering the motorist to alight from
the car or doing a patdown:
In Robinson, supra, we noted the two historical rationales for the “search incident to arrest”
exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve
evidence for later use at trial. x x x But neither of these underlying rationales for the search incident to arrest
exception is sufficient to justify the search in the present case.
We have recognized that the first rationale—officer safety—is “‘both legitimate and weighty,’” x x x
The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a
custodial arrest. In Robinson, we stated that a custodial arrest involves “danger to an officer” because of “the
extended exposure which follows the taking of a suspect into custody and transporting him to the police
station.” 414 U. S., at 234-235. We recognized that “[t]he danger to the police officer flows from the fact of
the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.” Id., at
234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and “is more analogous to
a so-called ‘Terry stop’ . . . than to a formal arrest.” Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also
Cupp v. Murphy, 412 U. S. 291, 296 (1973) (“Where there is no formal arrest . . . a person might well be less
hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence”).
This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It
plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer safety
in this context may justify the “minimal” additional intrusion of ordering a driver and passengers out of the
car, it does not by itself justify the often considerably greater intrusion attending a full fieldtype
search. Even without the search authority Iowa urges, officers have other, independent bases to search for
weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver,
Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform a “patdown” of a driver and any
passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1
(1968); conduct a “Terry patdown” of the passenger compartment of a vehicle upon reasonable suspicion
that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S.
1032, 1049 (1983); and even conduct a full search of the passenger compartment, including any containers
therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to search incident to arrest—the need to
discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was
 going to be found either on the person of the offender or in the passenger compartment of the car.
(Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of his arrest
at the earliest opportunity, a waiver of an illegal warrantless arrest does not, however, mean a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.[22]
The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures.[23] Any evidence obtained in violation of said right shall be inadmissible for any purpose
in any proceeding. While the power to search and seize may at times be necessary to the public welfare, still it must be
exercised and the law implemented without contravening the constitutional rights of citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the basic principles of government.[24]
The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the very corpus delicti of the crime
of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of the
accused.[26]
WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-G.R. CR No.
32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region, Naga City,
Branch 21, in Criminal Case No. RTC 2003-0087, is hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is
herebyACQUITTED and ordered immediately released from detention, unless his continued confinement is warranted by
some other cause or ground.
SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila

FIRST DIVISION

DIONISIO LOPEZ y ABERASTURI, G.R. No. 172203

Petitioner,
Present:

CORONA, C.J., Chairperson,

- versus - VELASCO, JR.,
LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.
PEOPLE OF THE PHILIPPINES and
SALVADOR G. ESCALANTE, JR., Promulgated:
Respondents. February 14, 2011
x------------------ -------------------------------------------------x

DECISION

DEL CASTILLO, J.:

Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. Free expression however, “is not absolute for
it may be so regulated that [its exercise shall neither] be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society.”[1] Libel stands as an exception to the enjoyment of that most guarded constitutional right.

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Dionisio Lopez (petitioner) assailing
the Decision[2] dated August 31, 2005 of the Court of Appeals (CA) in CA-G.R. CR No. 28175. The CA affirmed with modification the
Decision[3] rendered by the Regional Trial Court (RTC) of Cadiz City, Branch 60 finding petitioner guilty beyond reasonable doubt of the
crime of libel.

Procedural and Factual Antecedents

On April 3, 2003, petitioner was indicted for libel in an Information dated March 31, 2003, the accusatory portion of which reads in
full as follows:

That on or about the early part of November 2002 in the City of Cadiz, Philippines and within the jurisdiction of
this Honorable Court, the herein accused did then and there, willfully, unlawfully and feloniously with intent to impeach
the integrity, reputation and putting to public ridicule and dishonor the offended party MAYOR SALVADOR G.
ESCALANTE, JR., City Mayor of Cadiz City and with malice and intent to injure and expose the said offended party to
public hatred, contempt and ridicule put up billboards/signboards at the fence of Cadiz Hotel, Villena Street, Cadiz City
and at Gustilo Boulevard, Cadiz City, which billboards/signboards read as follows:

“CADIZ FOREVER”
“______________ NEVER”

thereby deliberately titillating the curiosity of and drawing extraordinary attention from the residents of Cadiz City and
passers-by over what would be placed before the word “NEVER”. Later on November 15, 2002, accused affixed the
nickname of the herein private complainant “BADING” and the name of the City of “SAGAY” before the word “NEVER”
thus making the billboard appear as follows

“CADIZ FOREVER”
“BADING AND SAGAY NEVER”

For which the words in the signboards/billboards were obviously calculated to induce the readers/passers-by to suppose
and understand that something fishy was going on, therefore maliciously impeaching the honesty, virtue and reputation
of Mayor Salvador G. Escalante, Jr., and hence were highly libelous, offensive and defamatory to the good name,
character and reputation of the offended party and his office and that the said billboards/signboards were read by
thousands if not hundred[s] of thousands of persons, which caused damage and prejudice to the offended party by way
of moral damages in the amount [of]:

P5,000,000.00 – as moral damages.

 ACT CONTRARY TO LAW.[4]

Upon arraignment on May 8, 2003, petitioner, as accused, entered a plea of “not guilty.” During the pre-trial, the parties stipulated,
among others, on the identity of the accused, that the private complainant is the incumbent City Mayor of Cadiz City and is popularly
known by the nickname “Bading” and that the petitioner calls the private complainant “Bading.” Thenceforth, trial on the merits
commenced in due course.

Evidence introduced for the prosecution reveals that in the early part of November 2002, while exercising his official duties as Mayor
of Cadiz City, private respondent saw billboards with the printed phrase “CADIZ FOREVER” with a blank space before the word “NEVER”
directly under said phrase. Those billboards were posted on the corner of Gustilo and Villena streets, in front of Cadiz Hotel and beside the
old Coca-Cola warehouse in Cadiz City. He became intrigued and wondered on what the message conveyed since it was incomplete.

Some days later, on November 15, 2002, private respondent received a phone call relating that the blank space preceding the word
“NEVER” was filled up with the added words “BADING AND SAGAY.” The next day, he saw the billboards with the phrase “CADIZ FOREVER
BADING AND SAGAY NEVER” printed in full. Reacting and feeling that he was being maligned and dishonored with the printed phrase and
of being a “tuta” of Sagay, private respondent, after consultation with the City Legal Officer, caused the filing of a complaint for libel against
petitioner. He claimed that the incident resulted in mental anguish and sleepless nights for him and his family. He thus prayed for
damages.

Jude Martin Jaropillo (Jude) is a licensing officer of the Permit and License Division of Cadiz City. While on a licensing campaign, he
was able to read the message on the billboards. He wondered what fault the person alluded therein has done as the message is so
negative. He felt that the message is an insult to the mayor since it creates a negative impression, as if he was being rejected by the people
of Cadiz City. He claimed that he was giving his testimony voluntarily and he was not being rewarded, coerced or forced by anybody.

Nenita Bermeo (Nenita), a retired government employee of Cadiz City, was at Delilah’s Coffee [Shop] in the morning of November
19, 2002 when she heard the petitioner shouting “Bading, Bading, Never, Never.” She and the tricycle drivers drinking coffee were told by
petitioner “You watch out I will add larger billboards.” When she went around Cadiz City, she saw larger billboards with the phrase “CADIZ
FOREVER BADING AND SAGAY NEVER,” thus confirming what petitioner had said. With the message, she felt as if the people were trying
to disown the private respondent. According to her, petitioner has an ax to grind against the mayor. Like Jude, she was not also forced or
rewarded in giving her testimony.

Bernardita Villaceran (Bernardita) also found the message unpleasant because Mayor Escalante is an honorable and dignified
resident ofCadiz City. According to her, the message is an insult not only to the person of the mayor but also to the people of Cadiz City.

Petitioner admitted having placed all the billboards because he is aware of all the things happening around Cadiz City. He mentioned
“BADING” because he was not in conformity with the many things the mayor had done in Cadiz City. He insisted that he has no intention
whatsoever of referring to “Bading” as the “Tuta” of Sagay. He contended that it was private respondent who referred to Bading as “Tuta”
of Sagay. He further maintained that his personal belief and expression was that he will never love Bading and Sagay. He concluded that
the message in the billboards is just a wake-up call for Cadiz City.

Ruling of the Regional Trial Court

On December 17, 2003, the RTC rendered judgment convicting petitioner

of libel. The trial court ruled that from the totality of the evidence presented by the prosecution vìs-a-vìs that of the defense, all the
elements of libel are present. The fallo of the Decision reads:

WHEREFORE, in view of all the foregoing, this Court finds accused DIONISIO LOPEZ y ABERASTURI (bonded)
GUILTY beyond reasonable doubt of the crime of Libel defined and penalized under Article 353 in relation to Article 355
of the Revised Penal Code and there being no mitigating or aggravating circumstances attendant thereto hereby
sentences him to suffer an indeterminate penalty of imprisonment of FOUR MONTHS AND TWENTY DAYS of Arresto
Mayor maximum as the minimum to TWO YEARS, ELEVEN MONTHS AND TEN DAYS of Prision Correccional Medium as
the maximum and a FINE of P5,000.00 with subsidiary imprisonment in case of insolvency.

The accused is further ordered to pay the private complainant the sum of P5,000,000.00 by way of moral
damages.

The cash bond posted by the accused is hereby ordered cancelled and returned to the accused, however the
penalty of Fine adjudged against the accused is hereby ordered deducted from the cash bond posted by the accused
pursuant to Section 22 of Rule 114 of the Rules of Court and the remaining balance ordered returned to the
accused. The accused is hereby ordered immediately committed to the BJMP, Cadiz City for the service of his sentence.

Cost against the accused.

SO ORDERED.[5]
Ruling of the Court of Appeals

Petitioner appealed the Decision of the RTC to the CA which, as stated earlier, rendered judgment on August 31, 2005, affirming with
modification the Decision of the RTC. Like the trial court, the appellate court found the presence of all the elements of the crime of libel. It
reduced however, the amount of moral damages to P500,000.00. Petitioner then filed his Motion for Reconsideration, which the appellate
court denied in its Resolution[6] dated April 7, 2006.

Disgruntled, petitioner is now before us via the instant petition. Per our directive, private respondent filed his Comment[7] on August
29, 2006 while the Office of the Solicitor General (OSG) representing public respondent People of the Philippines, submitted a
Manifestation and Motion in Lieu of Comment[8] on even date. After the filing of petitioner’s Reply to private respondent’s Comment, we
further requested the parties to submit their respective memoranda. The OSG filed a Manifestation in Lieu of Memorandum, adopting as
its memorandum, the Manifestation and Motion in Lieu of Comment it earlier filed. Petitioner and private respondent submitted their
respective memoranda as required.

Issues

Petitioner raised the following arguments in support of his petition:

I
WHETHER X X X THE COURT OF APPEALS ERRED IN HOLDING THAT THE WORDS “CADIZ FOREVER[,] BADING
AND SAGAY NEVER” CONTAINED IN THE BILLBOARDS/SIGNBOARDS SHOW THE INJURIOUS NATURE OF THE
IMPUTATIONS MADE AGAINST THE PRIVATE RESPONDENT AND TENDS TO INDUCE SUSPICION ON HIS CHARACTER,
INTEGRITY AND REPUTATION AS MAYOR OF CADIZ CITY.

II
ASSUMING WITHOUT CONCEDING THAT THE WORDS “CADIZ FOREVER, BADING AND SAGAY NEVER”
CONTAINED IN THE BILLBOARDS ERECTED BY PETITIONER ARE DEFAMATORY, DID THE COURT OF APPEALS ERR IN NOT
HOLDING THAT THEY COMPRISE FAIR COMMENTARY ON MATTERS OF PUBLIC INTEREST WHICH ARE THEREFORE
PRIVILEGED?

III
WHETHER X X X THE COURT OF APPEALS ERRED IN HOLDING THAT THE PRESUMPTION OF MALICE IN THE CASE AT BAR
HAS NOT BEEN OVERTHROWN.
IV
WHETHER X X X THE COURT OF APPEALS ERRED IN NOT ACQUITTING PETITIONER OF THE CHARGE OF LIBEL AND IN
HOLDING HIM LIABLE FOR MORAL DAMAGES IN THE AMOUNT OF P500,000.[9]
Summed up, the focal issues tendered in the present petition boil down to the following: 1) whether the printed phrase “CADIZ
FOREVER, BADING AND SAGAY NEVER” is libelous; and 2) whether the controversial words used constituted privileged communication.

Our Ruling

We ought to reverse the CA ruling.

At the outset, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. The
factual findings of the lower courts are final and conclusive and are not reviewable by this Court, unless the case falls under any of the
following recognized exceptions:

1. When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

2. When the inference made is manifestly mistaken, absurd or impossible;

3. Where there is a grave abuse of discretion;

4. When the judgment is based on a misapprehension of facts;

5. When the findings of fact are conflicting;

6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee;

7. When the findings are contrary to those of the trial court;

8. When the findings of fact are conclusions without citation of specific evidence on which they are based;
 9. When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not disputed by the
respondents; and,

10. When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and
contradicted by the evidence on record.[10]

Indeed, the CA affirmed the factual findings of the RTC that all the elements of the crime of libel are present in this case. Thus,
following the general rule, we are precluded from making further evaluation of the factual antecedents of the case. However, we cannot
lose sight of the fact that both lower courts have greatly misapprehended the facts in arriving at their unanimous conclusion. Hence, we
are constrained to apply one of the exceptions specifically paragraph 4 above, instead of the general rule.

Petitioner takes exception to the CA’s ruling that the controversial phrase “CADIZ FOREVER, BADING AND SAGAY NEVER” tends to
induce suspicion on private respondent’s character, integrity and reputation as mayor of Cadiz City. He avers that there is nothing in said
printed matter tending to defame and induce suspicion on the character, integrity and reputation of private respondent.

The OSG, in its Manifestation and Motion in Lieu of Comment, asserts that “there is nothing in the phrase “CADIZ FOREVER” and
“BADING AND SAGAY NEVER” which ascribe to private respondent any crime, vice or defect, or any act, omission, condition, status or
circumstance which will either dishonor, discredit, or put him into contempt.”[11]

The prosecution maintains that the appellate court correctly sustained the trial court’s finding of guilt on petitioner. Citing well-
established jurisprudence[12] holding that “[w]ords calculated to induce suspicion are sometimes more effective
to destroy reputation than false charges directly made” and that “[i]ronical and metaphorical language is a favored vehicle for slander,” it
argued that the words printed on the billboards somehow bordered on the incomprehensible and the ludicrous yet they were so
deliberately crafted solely to induce suspicion and cast aspersion against private respondent’s honor and reputation.
A libel is defined as “a public and malicious imputation of a crime or of a vice or defect, real or imaginary or any act, omission,
condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridicial person or to blacken the
memory of one who is dead.”[13] “For an imputation to be libelous, the following requisites must concur: a) it must be defamatory; b) it
must be malicious; c) it must be given publicity and d) the victim must be identifiable.”[14] Absent one of these elements precludes the
commission of the crime of libel.

Although all the elements must concur, the defamatory nature of the subject printed phrase must be proved first because this is so
vital in a prosecution for libel. Were the words imputed not defamatory in character, a libel charge will not prosper. Malice is necessarily
rendered immaterial.

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or
imaginary or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt or which
tends to blacken the memory of one who is dead. To determine “whether a statement is defamatory, the words used are to be construed
in their entirety and should be taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading
them, unless it appears that they were used and understood in another sense.”[15] Moreover, “[a] charge is sufficient if the words are
calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of
certain offenses or are sufficient to impeach the honesty, virtue or reputation or to hold the person or persons up to public ridicule.”[16]

Tested under these established standards, we cannot subscribe to the appellate court’s finding that the phrase “CADIZ FOREVER,
BADING AND SAGAY NEVER” tends to induce suspicion on private respondent’s character, integrity and reputation as mayor
of CadizCity. There are no derogatory imputations of a crime, vice or defect or any act, omission, condition, status or circumstance tending,
directly or indirectly, to cause his dishonor. Neither does the phrase in its entirety, employ any unpleasant language or somewhat harsh
and uncalled for that would reflect on private respondent’s integrity. Obviously, the controversial word “NEVER” used by petitioner was
plain and simple. In its ordinary sense, the word did not cast aspersion upon private respondent’s integrity and reputation much less
convey the idea that he was guilty of any offense. Simply worded as it was with nary a notion of corruption and dishonesty in government
service, it is our considered view to appropriately consider it as mere epithet or personal reaction on private respondent’s performance of
official duty and not purposely designed to malign and besmirch his reputation and dignity more so to deprive him of public confidence.

Indeed, the prosecution witnesses were able to read the message printed in the billboards and gave a negative impression on what it
says. They imply that the message conveys something as if the private respondent was being rejected as city mayor of Cadiz. But the
trustworthiness of these witnesses is doubtful considering the moral ascendancy exercised over them by the private respondent such that
it is quite easy for them to draw such negative impression. As observed by the OSG, at the time the billboards were erected and during the
incumbency of private respondent as mayor of Cadiz City, these witnesses were either employed in the Cadiz City Hall or active in the
project of the city government. Bernardita was a member of the Clean and Green Program of Cadiz City; Jude was employed as a licensing
officer under the Permit and License Division of the Cadiz City Hall and Nenita held the position of Utility Worker II of the General Services
Office ofCadiz City. These witnesses, according to the OSG, would naturally testify in his favor. They could have verbicide the meaning of
the word “NEVER.” Prudently, at the least, the prosecution could have presented witnesses within the community with more independent
disposition than these witnesses who are beholden to private respondent.

According to the private respondent, the message in the billboards would like to convey to the people of Cadiz that he is
a tuta ofSagay City.
 We disagree. Strangely, the OSG adopted a position contrary to the interest of the People. In its Manifestation and Motion in
Lieu of Comment, instead of contesting the arguments of the petitioner, the OSG surprisingly joined stance with him, vehemently praying
for his acquittal. We quote with approval the OSG’s analysis of the issue which was the basis for its observation, thus:

During the proceedings in the trial court, private respondent testified that the subject billboards maligned his
character and portrayed him as a puppet ofSagay City, Thus:

Q: You do not know of course the intention of putting those billboards “BADING AND SAGAY NEVER”?
A: Definitely, I know the intention because to answer your question, it will not only require those “BADING AND
SAGAY NEVER” billboard[s], it was after which additional billboards were put up. That strengthen, that I am being a “Tuta
of Sagay. I am being maligned because of those billboards that states and I repeat: “Ang Tubig san Cadiz, ginkuha sang
Sagay”, “Welcome to Brgy. Cadiz” and there is a small word under it, Zone 2, very small, very very small, you cannot see
it in [sic] a glance.

xxxx

A: That is the meaning of the signboard[s]. The message that the signboards would like to convey to the people
of Cadiz, that the Mayor of Cadiz City is a “Tuta” or Puppet of Sagay City.

x x x x[17]

Contrary to private respondent’s assertion, there is nothing in the subject billboards which state, either directly
or indirectly, that he is, in his words, a “tuta” or “puppet” of Sagay City. Except for private respondent, not a single
prosecution witness testified that the billboards portray Mayor Bading Escalante, Jr. as a “tuta or “puppet” of Sagay City.
The billboards erected by petitioner simply say “CADIZ FOREVER”, “BADING AND SAGAY NEVER”[18]
Apparently, private respondent refers to the circumstances mentioned in another billboard that is not the subject matter in the
present charge. The aforesaid facts dismally failed to support the allegations in the instant information. Be that as it may, private
respondent nevertheless did not specify any actionable wrong or particular act or omission on petitioner’s part that could have defamed
him or caused his alleged injury. While it may be that the Court is not bound by the analysis and observation of the OSG, still, the Court
finds that it deserves meritorious consideration. The prosecution never indulged to give any reason persuasive enough for the court not to
adopt it.

Truth be told that somehow the private respondent was not pleased with the controversial printed matter. But that is grossly
insufficient to make it actionable by itself. “[P]ersonal hurt or embarrassment or offense, even if real, is not automatically equivalent to
defamation,”[19]“words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute bases for an action for defamation in the absence of an
allegation for special damages. The fact that the language is offensive to the plaintiff does not make it actionable by itself,” as the Court
ruled in MVRS Publications, Inc. v. Islamic Da’ Wah Council of the Phils., Inc.[20]

In arriving at an analogous finding of guilt on petitioner, both lower courts heavily relied on the testimony of the petitioner pertaining
to the reasons behind the printing of the phrase “CADIZ FOREVER BADING AND SAGAY NEVER.”[21] Our in-depth scrutiny of his testimony,
however, reveals that the reasons elicited by the prosecution mainly relate to the discharge of private respondent’s official duties as City
Mayor of Cadiz City. For that matter, granting that the controversial phrase is considered defamatory, still, no liability attaches on
petitioner. Pursuant to Article 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to
the discharge of his official duties and functions and the truth of the allegations is shown, the accused will be entitled to an acquittal even
though he does not prove that the imputation was published with good motives and for justifiable ends. As the Court held in United States
v. Bustos,[22]the policy of a public official may be attacked, rightly or wrongly with every argument which ability can find or ingenuity
invent. The public officer “may suffer under a hostile and an unjust accusation; the wound can be assuaged by the balm of a clear
conscience. A public [official] must not be too thin-skinned with reference to comments upon his official acts.”

“In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the offense be established with moral
certainty as this is the critical and only requisite to a finding of guilt.”[23] In this case, contrary to the conclusion of the trial court as affirmed
by the appellate court, the prosecution failed to prove that the controversial phrase “CADIZ FOREVER, BADING AND SAGAY NEVER”
imputes derogatory remarks on private respondent’s character, reputation and integrity. In this light, any discussion on the issue of malice
is rendered moot.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated August 31, 2005 in CA-G.R. CR No. 28175
is REVERSED and SET ASIDE and the petitioner is ACQUITTED of the crime charged.
SO ORDERED
 EN BANC

FRANCISCO CHAVEZ, G.R. No. 168338

x-----------------------
Petitioner,
------------------------
Present:
------------------------
--------------x
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
DECISION
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
PUNO, C.J.:
CORONA,
CARPIO MORALES,
A. Precis
AZCUNA,
TINGA,
In this
CHICO-NAZARIO,
jurisdiction, it is
RAUL M. GONZALES, VELASCO, JR.,
established that
in his capacity as the NACHURA,
freedom of the
Secretary of the REYES, and
press is crucial and
Department of Justice; LEONARDO-DE CASTRO, JJ.
so inextricably
and NATIONAL TELECOMMUNICATIONS
woven into the
COMMISSION (NTC), Promulgated:
right to free
Respondents.
speech and free
February 15, 2008
expression, that
any attempt to
restrict it must be
met with an
examination so
critical that only a
danger that is
clear and present
would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances
meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more
than a naked means to prevent the free exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005,
Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by
releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria
Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping.[5] Later, in a Malacañang press briefing, Secretary Bunye produced two
versions of the tape, one supposedly the complete version, and the other, a spliced, “doctored” or altered version,
which would suggest that the President had instructed the COMELEC official to manipulate the election results in the
President’s favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but
subsequently made a retraction. [7]

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an
alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President,
the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who
had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the
Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons
possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal
knowledge if the crime was committed or was being committed in their presence.[9]

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to
go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape”
of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national
elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily
 Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to
disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and
managers of Inq7.net and GMA7 to a probe, and supposedly declared, “I [have] asked the NBI to conduct a tactical
interrogation of all concerned.” [10]

5. On June 11, 2005, the NTC issued this press release: [11]

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-
WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate
the same, the NTCwarns all radio stations and television network owners/operators that the
conditions of the authorization and permits issued to them by Government like the Provisional
Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their]
stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative
thereto, it has come to the attention of the [NTC] that certain personalities are in possession of
alleged taped conversations which they claim involve the President of the Philippines and a
Commissioner of the COMELEC regarding supposed violation of election laws.

These personalities have admitted that the taped conversations are products of illegal wiretapping
operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at
this time that the tapes contain an accurate or truthful representation of what was recorded therein,
it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations
by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. It has been subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the concerned radio and television
companies are hereby warned that their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the
licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be
observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states,
among others, that “all radio broadcasting and television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or
telecast the tendency thereof is to disseminate false information or such other willful
misrepresentation, or to propose and/or incite treason, rebellion or sedition.” The foregoing directive
had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited
radio, broadcasting and television stations from using their stations to broadcast or telecast any
speech, language or scene disseminating false information or willful misrepresentation, or inciting,
encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force
the provisions of said Circulars and their accompanying sanctions on erring radio and television
stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas
(KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of
expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press
Statementwhich states, among others, that: [12]

NTC respects and will not hinder freedom of the press and the right to information on matters of
public concern. KBP & its members have always been committed to the exercise of press freedom
with high sense of responsibility and discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom
or censorship. The NTC further denies and does not intend to limit or restrict the interview of
members of the opposition or free expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
 KBP has program standards that KBP members will observe in the treatment of news and public
affairs programs. These include verification of sources, non-airing of materials that would constitute
inciting to sedition and/or rebellion.

The KBP Codes also require that no false statement or willful misrepresentation is made in the
treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving
due consideration to the process being undertaken to verify and validate the authenticity and
actual content of the same.”

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the
NTC, “praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.”[13]

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of
the people to information on matters of public concern,[14] petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005
until the present that curtail the public’s rights to freedom of expression and of the press, and to information
on matters of public concern specifically in relation to information regarding the controversial taped
conversion of President Arroyo and for prohibition of the further commission of such acts, and making of
such issuances, and orders by respondents. [15]

Respondents[16] denied that the acts transgress the Constitution, and questioned petitioner’s legal standing to file the
petition. Among the arguments they raised as to the validity of the “fair warning” issued by respondent NTC, is that broadcast
media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTC’s
mandate to regulate the telecommunications industry. [17] It was also stressed that “most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP.” [18]

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member
of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to
free speech, free expression and a free press. For another, the recipients of the press statements have not come forward—
neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC
that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege “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.” [19]

But as early as half a century ago, we have already held that where serious constitutional questions are involved, “the
transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if
we must, technicalities of procedure.” [20] Subsequently, this Court has repeatedly and consistently refused to wield
procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public
interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our
society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a
challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent
of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most
decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed,
the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now
beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their
constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and
broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the
lines of distinction between print and broadcast media.
 E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.[24]

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given
a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights
codified byArticle III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech.[26] This
preferred status of free speech has also been codified at the international level, its recognition now enshrined in international
law as a customary norm that binds all nations.[27]

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our
constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions,
reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly
every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression
and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is
only when the people have unbridled access to information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own
Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the
Court inGonzales v. Commission on Elections, [32] in which it was held:

…At the very least, free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable,
whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in
social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the
1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest
latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public
issue should be uninhibited, robust, and wide-open. [35]

Freedom of speech and of the press means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any
matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more
– to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are
confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided
by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger.”[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought
that agrees with us. [40]

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It
protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of
human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which
information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic,
scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not
confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to
speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting
Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad
protection of the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom
of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
 E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is
not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision
prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it
an “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse
this freedom.”

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or
society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech,
may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection
and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been
applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudence—whether
here or abroad—will reveal that courts have developed different tests as to specific types or categories of speech in
concrete situations; i.e.,subversive speech; obscene speech; the speech of the broadcast media and of the traditional print
media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that
affects the right to a fair trial; and speech associated with rights of assembly and petition. [47]

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) thedangerous tendency doctrine which permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a
standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present
danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will
likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, “extremely serious and the degree of imminence extremely high.” [50]

As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear
and present danger test. [51]

E.3. IN FOCUS: FREEDOM OF THE PRESS

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and
expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is
the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens
keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to
keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go
uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]

The interest of society and the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a
hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits
from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or
defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private
individuals or public officials.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED REGULATIONS

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom
of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3)
freedom of access to information; [54] and (4) freedom of circulation.[55]

Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible prior
restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from
content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This
presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on
speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the
determinations were always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech
has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our
jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the
governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test
with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of
theirprinting and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form
of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can
be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that
restrains speech is presumed invalid,[58] and “any act that restrains speech is hobbled by the presumption of invalidity and
should be greeted with furrowed brows,” [59] it is important to stress not all prior restraints on speech are invalid. Certain
previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged
act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech.
A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; [60] or (2)
a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The
cast of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that
is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions
be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of
expression. The intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government,
if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of that interest. [64]

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given
thestrictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed
unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be
restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior
restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by
showing a substantive and imminent evil that has taken the life of a reality already on ground.”[67] As formulated, “the
question in every case is whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.”[68]

The regulation which restricts the speech content must also serve an important or substantial government interest, which
is unrelated to the suppression of free expression. [69]

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that
interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest
will be invalidated. [71]The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with
the least restrictive means undertaken. [72]
 Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review.
A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and
present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions
imposed are neither overbroad nor vague. [74]

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present
danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one object—a specific
content— fixed as these were on the alleged taped conversations between the President and a COMELEC official.
Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast media enjoys free
speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as
it has been invoked to validate a content-based restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect
of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to
regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and
television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media
from the application of the “strict scrutiny” standard that they would otherwise apply to content-based
restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a)
the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be
limitless]; [77] (b) its “pervasiveness” as a medium; and (c) its unique accessibility to children.[78] Because cases involving
broadcast media need not follow “precisely the same approach that [U.S. courts] have applied to other media,” nor go “so far
as to demand that such regulations serve ‘compelling’ government interests,”[79] they are decided on whether the
“governmental restriction” is narrowly tailored to further a substantial governmental interest,”[80] or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between
broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show that—as we have
deviated with the American conception of the Bill of Rights[81]— we likewise did not adopt en masse the U.S. conception
of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held
that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to
traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation
(DYRE) v. Dans,[82] wherein it was held that “[a]ll forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be
the clear and present danger rule…”[83]

Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of
national security. Although the issue had become moot and academic because the owners were no longer interested to
reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior
courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be
considered in cases involving broadcast media. Thus:[84]

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of
speech and expression clause. The test for limitations on freedom of expression continues to be
the clear and present danger rule, that words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the substantive evils that
the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570)
Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More
recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases
Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a
simplistic and all embracing interpretation applicable to all utterances in all forums.
 Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A
broadcast corporation cannot simply appropriate a certain frequency without regard for government
regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of expression clause.
Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726),
confronted with a patently offensive and indecent regular radio program, explained why radio
broadcasting, more than other forms of communications, receives the most limited protection from
the free expression clause. First, broadcast media have established a uniquely pervasive presence in
the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public,
but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores
and motion picture theaters may be prohibited from making certain material available to children,
but the same selectivity cannot be done in radio or television, where the listener or viewer is
constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos.
Newspapers and current books are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even here, there are low income masses
who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs
like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also becoming
universal. Their message may be simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person of every age, persons of
varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons
whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio
audience has lesser opportunity to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast
media into account. The supervision of radio stations-whether by government or through self-
regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners to violently
overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of
widespread uprising. At the same time, the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly
entertaining utterances. Since they are the most convenient and popular means of disseminating
varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In
the 1918 case ofUnited States v. Bustos (37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the due process and
freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation
of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that “the
test for limitations on freedom of expression continues to be the clear and present danger rule,” for all forms of media,
whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that
the Court inDans referred to was narrowly restricted to what is otherwise deemed as “unprotected speech” (e.g., obscenity,
national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the
limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given
to broadcast media was “somewhat lesser in scope than the freedom accorded to newspaper and print media,” it was not as
to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of
norms to unprotected speech. [85]

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine
free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly
speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied
to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to
resolve obscenity issues in television as opposed to motion pictures:
 All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to
motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach
calls for observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely be among the avid viewers of
the programs therein shown…..It cannot be denied though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast
company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve
freedoms of speech and of the press.[89]

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the
broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved
broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner
of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving
due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the media’s
franchise, without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where
the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and
censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number
of respects, but have a common historical basis. The stricter system of controls seems to have been
adopted in answer to the view that owing to their particular impact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed
media do not. These media are viewed as beneficial to the public in a number of respects, but are also
seen as possible sources of harm.[93]
 Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to
provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential
channels.Digital technology will further increase the number of channels available. But still, the argument persists that
broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the print media normally does
not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main
threat to free expression—in terms of diversity—comes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast
media regulation. [94]

The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the
computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be
appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the
broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the
Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree
to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential
treatment. [98]

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the
case at bar. To recapitulate, a governmental action that restricts freedom of speech
or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming
the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the
presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On
the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom
of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government
wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at
bar, however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger
test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two
versions, one supposed to be a “complete” version and the other, an “altered” version. Thirdly, the evidence of the
respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different
versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of
the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would
violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an
adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but
their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law
is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of
the press. Thetotality of the injurious effects of the violation to private and public interest must be calibrated in light of the
preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance
with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But
to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred
right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and
present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing
that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press
statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has
transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by
respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements
were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as
a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The
concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non
formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior
restraints on the right to free speech and press.
 There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came
from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They
also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those
perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of
speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the
subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light
of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and
the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a
case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are
patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too
soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the
official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped
conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of
freedom of speech and of the press
SO ORDERED.
 EN BANC

FRANCISCO CHAVEZ, G.R. No. 168338

x-----------------------
Petitioner,
------------------------
Present:
------------------------
--------------x
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
DECISION
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
PUNO, C.J.:
CORONA,
CARPIO MORALES,
A. Precis
AZCUNA,
TINGA,
In this
CHICO-NAZARIO,
jurisdiction, it is
RAUL M. GONZALES, VELASCO, JR.,
established that
in his capacity as the NACHURA,
freedom of the
Secretary of the REYES, and
press is crucial and
Department of Justice; LEONARDO-DE CASTRO, JJ.
so inextricably
and NATIONAL TELECOMMUNICATIONS
woven into the
COMMISSION (NTC), Promulgated:
right to free
Respondents.
speech and free
February 15, 2008
expression, that
any attempt to
restrict it must be
met with an
examination so
critical that only a
danger that is
clear and present
would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances
meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more
than a naked means to prevent the free exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005,
Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by
releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria
Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping.[5] Later, in a Malacañang press briefing, Secretary Bunye produced two
versions of the tape, one supposedly the complete version, and the other, a spliced, “doctored” or altered version,
which would suggest that the President had instructed the COMELEC official to manipulate the election results in the
President’s favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but
subsequently made a retraction. [7]

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an
alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President,
the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who
had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the
Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons
possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal
knowledge if the crime was committed or was being committed in their presence.[9]

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to
go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape”
of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national
elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily
 Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to
disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and
managers of Inq7.net and GMA7 to a probe, and supposedly declared, “I [have] asked the NBI to conduct a tactical
interrogation of all concerned.” [10]

5. On June 11, 2005, the NTC issued this press release: [11]

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-
WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate
the same, the NTCwarns all radio stations and television network owners/operators that the
conditions of the authorization and permits issued to them by Government like the Provisional
Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their]
stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative
thereto, it has come to the attention of the [NTC] that certain personalities are in possession of
alleged taped conversations which they claim involve the President of the Philippines and a
Commissioner of the COMELEC regarding supposed violation of election laws.

These personalities have admitted that the taped conversations are products of illegal wiretapping
operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at
this time that the tapes contain an accurate or truthful representation of what was recorded therein,
it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations
by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. It has been subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the concerned radio and television
companies are hereby warned that their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the
licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be
observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states,
among others, that “all radio broadcasting and television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or
telecast the tendency thereof is to disseminate false information or such other willful
misrepresentation, or to propose and/or incite treason, rebellion or sedition.” The foregoing directive
had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited
radio, broadcasting and television stations from using their stations to broadcast or telecast any
speech, language or scene disseminating false information or willful misrepresentation, or inciting,
encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force
the provisions of said Circulars and their accompanying sanctions on erring radio and television
stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas
(KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of
expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press
Statementwhich states, among others, that: [12]

NTC respects and will not hinder freedom of the press and the right to information on matters of
public concern. KBP & its members have always been committed to the exercise of press freedom
with high sense of responsibility and discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom
or censorship. The NTC further denies and does not intend to limit or restrict the interview of
members of the opposition or free expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
 KBP has program standards that KBP members will observe in the treatment of news and public
affairs programs. These include verification of sources, non-airing of materials that would constitute
inciting to sedition and/or rebellion.

The KBP Codes also require that no false statement or willful misrepresentation is made in the
treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving
due consideration to the process being undertaken to verify and validate the authenticity and
actual content of the same.”

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the
NTC, “praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.”[13]

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of
the people to information on matters of public concern,[14] petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005
until the present that curtail the public’s rights to freedom of expression and of the press, and to information
on matters of public concern specifically in relation to information regarding the controversial taped
conversion of President Arroyo and for prohibition of the further commission of such acts, and making of
such issuances, and orders by respondents. [15]

Respondents[16] denied that the acts transgress the Constitution, and questioned petitioner’s legal standing to file the
petition. Among the arguments they raised as to the validity of the “fair warning” issued by respondent NTC, is that broadcast
media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTC’s
mandate to regulate the telecommunications industry. [17] It was also stressed that “most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP.” [18]

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member
of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to
free speech, free expression and a free press. For another, the recipients of the press statements have not come forward—
neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC
that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege “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.” [19]

But as early as half a century ago, we have already held that where serious constitutional questions are involved, “the
transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if
we must, technicalities of procedure.” [20] Subsequently, this Court has repeatedly and consistently refused to wield
procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public
interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our
society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a
challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent
of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most
decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed,
the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now
beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their
constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and
broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the
lines of distinction between print and broadcast media.
 E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.[24]

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given
a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights
codified byArticle III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech.[26] This
preferred status of free speech has also been codified at the international level, its recognition now enshrined in international
law as a customary norm that binds all nations.[27]

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our
constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions,
reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly
every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression
and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is
only when the people have unbridled access to information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own
Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the
Court inGonzales v. Commission on Elections, [32] in which it was held:

…At the very least, free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable,
whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in
social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the
1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest
latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public
issue should be uninhibited, robust, and wide-open. [35]

Freedom of speech and of the press means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any
matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more
– to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are
confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided
by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger.”[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought
that agrees with us. [40]

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It
protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of
human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which
information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic,
scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not
confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to
speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting
Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad
protection of the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom
of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
 E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is
not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision
prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it
an “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse
this freedom.”

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or
society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech,
may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection
and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been
applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudence—whether
here or abroad—will reveal that courts have developed different tests as to specific types or categories of speech in
concrete situations; i.e.,subversive speech; obscene speech; the speech of the broadcast media and of the traditional print
media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that
affects the right to a fair trial; and speech associated with rights of assembly and petition. [47]

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) thedangerous tendency doctrine which permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a
standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present
danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will
likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, “extremely serious and the degree of imminence extremely high.” [50]

As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear
and present danger test. [51]

E.3. IN FOCUS: FREEDOM OF THE PRESS

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and
expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is
the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens
keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to
keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go
uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]

The interest of society and the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a
hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits
from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or
defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private
individuals or public officials.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED REGULATIONS

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom
of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3)
freedom of access to information; [54] and (4) freedom of circulation.[55]

Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible prior
restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from
content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This
presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on
speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the
determinations were always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech
has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our
jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the
governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test
with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of
theirprinting and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form
of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can
be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that
restrains speech is presumed invalid,[58] and “any act that restrains speech is hobbled by the presumption of invalidity and
should be greeted with furrowed brows,” [59] it is important to stress not all prior restraints on speech are invalid. Certain
previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged
act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech.
A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; [60] or (2)
a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The
cast of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that
is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions
be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of
expression. The intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government,
if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of that interest. [64]

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given
thestrictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed
unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be
restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior
restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by
showing a substantive and imminent evil that has taken the life of a reality already on ground.”[67] As formulated, “the
question in every case is whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.”[68]

The regulation which restricts the speech content must also serve an important or substantial government interest, which
is unrelated to the suppression of free expression. [69]

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that
interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest
will be invalidated. [71]The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with
the least restrictive means undertaken. [72]
 Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review.
A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and
present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions
imposed are neither overbroad nor vague. [74]

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present
danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one object—a specific
content— fixed as these were on the alleged taped conversations between the President and a COMELEC official.
Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast media enjoys free
speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as
it has been invoked to validate a content-based restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect
of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to
regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and
television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media
from the application of the “strict scrutiny” standard that they would otherwise apply to content-based
restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a)
the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be
limitless]; [77] (b) its “pervasiveness” as a medium; and (c) its unique accessibility to children.[78] Because cases involving
broadcast media need not follow “precisely the same approach that [U.S. courts] have applied to other media,” nor go “so far
as to demand that such regulations serve ‘compelling’ government interests,”[79] they are decided on whether the
“governmental restriction” is narrowly tailored to further a substantial governmental interest,”[80] or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between
broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show that—as we have
deviated with the American conception of the Bill of Rights[81]— we likewise did not adopt en masse the U.S. conception
of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held
that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to
traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation
(DYRE) v. Dans,[82] wherein it was held that “[a]ll forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be
the clear and present danger rule…”[83]

Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of
national security. Although the issue had become moot and academic because the owners were no longer interested to
reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior
courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be
considered in cases involving broadcast media. Thus:[84]

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of
speech and expression clause. The test for limitations on freedom of expression continues to be
the clear and present danger rule, that words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the substantive evils that
the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570)
Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More
recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases
Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a
simplistic and all embracing interpretation applicable to all utterances in all forums.
 Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A
broadcast corporation cannot simply appropriate a certain frequency without regard for government
regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of expression clause.
Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726),
confronted with a patently offensive and indecent regular radio program, explained why radio
broadcasting, more than other forms of communications, receives the most limited protection from
the free expression clause. First, broadcast media have established a uniquely pervasive presence in
the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public,
but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores
and motion picture theaters may be prohibited from making certain material available to children,
but the same selectivity cannot be done in radio or television, where the listener or viewer is
constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos.
Newspapers and current books are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even here, there are low income masses
who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs
like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also becoming
universal. Their message may be simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person of every age, persons of
varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons
whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio
audience has lesser opportunity to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast
media into account. The supervision of radio stations-whether by government or through self-
regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners to violently
overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of
widespread uprising. At the same time, the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly
entertaining utterances. Since they are the most convenient and popular means of disseminating
varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In
the 1918 case ofUnited States v. Bustos (37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the due process and
freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation
of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that “the
test for limitations on freedom of expression continues to be the clear and present danger rule,” for all forms of media,
whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that
the Court inDans referred to was narrowly restricted to what is otherwise deemed as “unprotected speech” (e.g., obscenity,
national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the
limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given
to broadcast media was “somewhat lesser in scope than the freedom accorded to newspaper and print media,” it was not as
to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of
norms to unprotected speech. [85]

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine
free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly
speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied
to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to
resolve obscenity issues in television as opposed to motion pictures:
 All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to
motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach
calls for observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely be among the avid viewers of
the programs therein shown…..It cannot be denied though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast
company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve
freedoms of speech and of the press.[89]

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the
broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved
broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner
of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving
due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the media’s
franchise, without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where
the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and
censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number
of respects, but have a common historical basis. The stricter system of controls seems to have been
adopted in answer to the view that owing to their particular impact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed
media do not. These media are viewed as beneficial to the public in a number of respects, but are also
seen as possible sources of harm.[93]
 Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to
provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential
channels.Digital technology will further increase the number of channels available. But still, the argument persists that
broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the print media normally does
not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main
threat to free expression—in terms of diversity—comes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast
media regulation. [94]

The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the
computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be
appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the
broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the
Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree
to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential
treatment. [98]

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the
case at bar. To recapitulate, a governmental action that restricts freedom of speech
or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming
the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the
presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On
the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom
of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government
wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at
bar, however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger
test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two
versions, one supposed to be a “complete” version and the other, an “altered” version. Thirdly, the evidence of the
respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different
versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of
the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would
violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an
adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but
their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law
is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of
the press. Thetotality of the injurious effects of the violation to private and public interest must be calibrated in light of the
preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance
with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But
to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred
right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and
present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing
that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press
statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has
transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by
respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements
were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as
a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The
concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non
formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior
restraints on the right to free speech and press.
 There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came
from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They
also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those
perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of
speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the
subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light
of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and
the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a
case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are
patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too
soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the
official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped
conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of
freedom of speech and of the press
SO ORDERED.
EN BANC
G.R. No. 192088 : October 9, 2012
INITIATIVES FOR DIALOGUE AND EMPOWERMENT THROUGH ALTERNATIVE LEGAL SERVICES, INC. (IDEALS, INC.),
represented by its Executive Director, Mr. Edgardo Ligon, and FREEDOM FROM DEBT COALITION (FDC), represented by its
Vice President Rebecca L. Malay, AKBAYAN CITIZEN'S ACTION PARTY, represented by its Chair Emeritus Loretta Anne P.
Rosales, ALLIANCE OF PROGRESSIVE LABOR, represented by its Chairperson, Daniel L. Edralin, REP. WALDEN BELLO, in his
capacity as duly-elected Member of the House of Representatives, Petitioners, v. POWER SECTOR ASSETS AND LIABILITIES
MANAGEMENT CORPORATION (PSALM), represented by its Acting President and Chief Executive Officer Atty. Ma. Luz L.
Caminero, METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), represented by its Administrator Atty.
Diosdado M. Allado, NATIONAL IRRIGATION ADMINISTRATION (NIA), represented by its Administrator Carlos S. Salazar,
KOREA WATER RESOURCES CORPORATION, represented by its Chief Executive Officer, Kim Kuen-Ho and/or Attorneys-in-
fact, Atty. Anna Bianca L. Torres and Atty. Luther D. Ramos, FIRST GEN NORTHERN ENERGY CORP., represented by its
President, Mr. Federico R. Lopez, SAN MIGUEL CORP., represented by its President, Mr. Ramon S. Ang, SNABOITIZ POWER-
PANGASINAN INC., represented by its President, Mr. Antonio R. Moraza, TRANS-ASIA OIL AND ENERGY DEVELOPMENT
CORPORATION, represented by its President and CEO, Mr. Francisco L. Viray, and DMCI POWER CORP., represented by its
President, Mr. Nestor Dadivas, Respondents.
DECISION
VILLARAMA, J.:
Before us is a petition for certiorari and prohibition seeking to permanently enjoin the sale of the Angat Hydro-Electric Power
Plant (AHEPP) to Korea Water Resources Corporation (K-Water) which won the public bidding conducted by the Power Sector
Assets and Liabilities Management Corporation (PSALM).
The Facts
Respondent PSALM is a government-owned and controlled corporation created by virtue of Republic Act No.
9136,1ςrνll otherwise known as the "Electric Power Industry Reform Act of 2001" (EPIRA). The EPIRAprovided a framework
for the restructuring of the electric power industry, including the privatization of the assets of the National Power Corporation
(NPC), the transition to the desired competitive structure, and the definition of the responsibilities of the various government
agencies and private entities. Said law mandated PSALM to manage the orderly sale, disposition, and privatization of NPC
generation assets, real estate and other disposable assets, and Independent Power Producer (IPP) contracts with the objective
of liquidating all NPC financial obligations and stranded contract costs in an optimal manner, which liquidation is to be
completed within PSALMs 25-year term of existence.2ςrνll
Sometime in August 2005, PSALM commenced the privatization of the 246-megawatt (MW) AHEPP located in San Lorenzo,
Norzagaray, Bulacan. AHEPPs main units built in 1967 and 1968, and 5 auxiliary units, form part of the Angat Complex which
includes the Angat Dam, Angat Reservoir and the outlying watershed area. A portion of the AHEPP - the 10 MW Auxiliary Unit
No. 4 completed on June 16, 1986 and the 18 MW Auxiliary Unit No. 5 completed on January 14, 1993 - is owned by
respondent Metropolitan Waterworks and Sewerage System (MWSS).3ςrνll The main units produce a total of 200 MW of
power while the auxiliary units yield the remaining 46 MW of power. The Angat Dam and AHEPP are utilized for power
generation, irrigation, water supply and flood control purposes. Because of its multi-functional design, the operation of the
Angat Complex involves various government agencies, namely: (1) NPC; (2) National Water Resources Board (NWRB); (3)
MWSS; (4) respondent National Irrigation Administration (NIA); and (5) Philippine Atmospheric, Geophysical and Astronomical
Services Administration (PAG-ASA).
On December 15, 2009, PSALMs Board of Directors approved the Bidding Procedures for the privatization of the AHEPP. An
Invitation to Bid was published on January 11, 12 and 13, 2010 in three major national newspapers. Subject of the bid was the
AHEPP consisting of 4 main units and 3 auxiliary units with an aggregate installed capacity of 218 MW. The two auxiliary units
owned by MWSS were excluded from the bid.
The following terms and conditions for the purchase of AHEPP were set forth in the Bidding Package:
IB-05 CONDITION OF THE SALE
The Asset shall be sold on an "AS IS, WHERE IS" basis.
The Angat Dam (which is part of the Non-Power Components) is a multi-purpose hydro facility which currently supplies water
for domestic use, irrigation and power generation. The four main units of the Angat Plant release water to an underground
trailrace that flows towards the Bustos Dam which is owned and operated by the National Irrigation Administration ("NIA")
and provides irrigation requirements to certain areas in Bulacan. The water from the auxiliary units 1, 2 and 3 flows to the Ipo
Dam which is owned and operated by MWSS and supplies domestic water to Metro Manila and other surrounding cities.
The priority of water usage under Philippine Law would have to be observed by the Buyer/Operator.
The Winning Bidder/Buyer shall be requested to enter into an operations and maintenance agreement with PSALM for the
Non-Power Components in accordance with the terms and conditions of the O & M Agreement to be issued as part of the
Final Transaction Documents. The Buyer, as Operator, shall be required to operate and maintain the Non-Power Components
at its own cost and expense. PSALM is currently negotiating a water protocol agreement with various parties which are
currently the MWSS, NIA, the National Water Resources Board and NPC. If required by PSALM, the Buyer will be required to
enter into the said water protocol agreement as a condition to the award of the Asset.
The Buyer shall be responsible for securing the necessary rights to occupy the land underlying the Asset.4ςrνll (Emphasis
supplied.)
All participating bidders were required to comply with the following:chanroblesvirtuallawlibrary
(a) submission of a Letter of Interest; (b) execution of Confidentiality Agreement and Undertaking; and (c) payment of a non-
refundable fee of US$ 2,500 as Participation Fee.5ςrνll After holding pre-bid conferences and forum discussions with various
stakeholders, PSALM received the following bids from six competing firms:
K-Water US$ 440,880,000.00
First Gen Northern Energy 365,000,678.00
Corporation
San Miguel Corporation 312,500,000.00
SNAboitiz Power-Pangasinan, Inc. 256,000,000.00
Trans-Asia Oil & Energy 237,000,000.00
Development Corporation
DMCI Power Corporation 188,890,000.00
On May 5, 2010, and after a post-bid evaluation, PSALMs Board of Directors approved and confirmed the issuance of a Notice
of Award to the highest bidder, K-Water.6ςrνll
On May 19, 2010, the present petition with prayer for a temporary restraining order (TRO) and/or writ of preliminary
injunction was filed by the Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. (IDEALS),
Freedom from Debt Coalition (FDC), AKBAYAN Citizens Action Party (AKBAYAN) and Alliance of Progressive Labor.
On May 24, 2010, this Court issued a Status QuoAnte Order directing the respondents to maintain the status quo prevailing
before the filing of the petition and to file their respective Comments on the petition.7ςrνll
Arguments of the Parties
Petitioners contend that PSALM gravely abused its discretion when, in the conduct of the bidding it disregarded and violated
the peoples right to information guaranteed under the Constitution, as follows: (1) the bidding process was commenced by
PSALM without having previously released to the public critical information such as the terms and conditions of the sale, the
parties qualified to bid and the minimum bid price, as laid down in the case of Chavez v. Public Estates Authority8ςrνll ; (2)
PSALM refused to divulge significant information requested by petitioners, matters which are of public concern; and (3) the
bidding was not conducted in an open and transparent manner, participation was indiscriminately restricted to the private
sectors in violation of the EPIRA which provides that its provisions shall be "construed in favor of the establishment,
promotion, preservation of competition and people empowerment so that the widest participation of the people, whether
directly or indirectly, is ensured."9ςrνll
Petitioners also assail the PSALM in not offering the sale of the AHEPP to MWSS which co-owned the Angat Complex together
with NPC and NIA. Being a mere co-owner, PSALM cannot sell the AHEPP without the consent of co-owners MWSS and NIA,
and being an indivisible thing, PSALM has a positive obligation to offer its undivided interest to the other co-owners before
selling the same to an outsider. Hence, PSALMs unilateral disposition of the said hydro complex facility violates the Civil Code
rules on co-ownership (Art. 498) and Sec. 47 (e) of the EPIRA which granted PSALM the legal option of transferring possession,
control and operation of NPC generating assets like the AHEPP to another entity in order "to protect potable water, irrigation
and all other requirements imbued with public interest."
As to the participation in the bidding of and award of contract to K-Water which is a foreign corporation, petitioners contend
that PSALM clearly violated the constitutional provisions on the appropriation and utilization of water as a natural resource, as
implemented by the Water Code of the Philippines limiting water rights to Filipino citizens and corporations which are at least
60% Filipino-owned. Further considering the importance of the Angat Dam which is the source of 97% of Metro Manilas water
supply, as well as irrigation for farmlands in 20 municipalities and towns in Pampanga and Bulacan, petitioners assert that
PSALM should prioritize such domestic and community use of water over that of power generation.
They maintain that the Philippine Government, along with its agencies and subdivisions, have an obligation under
international law, to recognize and protect the legally enforceable human right to water of petitioners and the public in
general.
Petitioners cite the Advisory on the "Right to Water in Light of the Privatization of the Angat Hydro-Electric Power
Plant"10ςrνll dated November 9, 2009 issued by the Commission on Human Rights (CHR) urging the Government to revisit
and reassess its policy on water resources vis-vis its concurrent obligations under international law to provide, and ensure and
sustain, among others, "safe, sufficient, affordable and convenient access to drinking water." Since investment in hydropower
business is primarily driven by generation of revenues both for the government and private sector, the CHR warns that once
the AHEPP is privatized, there will be less accessible water supply, particularly for those living in Metro Manila and the
Province of Bulacan and nearby areas which are currently benefited by the AHEPP. The CHR believes that the management of
AHEPP is better left to MWSS being a government body and considering the public interest involved. However, should the
decision to privatize the AHEPP become inevitable, the CHR strongly calls for specific and concrete safeguards to ensure the
right to water of all, as the domestic use of water is more fundamental than the need for electric power.
Petitioners thus argue that the protection of their right to water and of public interest requires that the bidding process
initiated by PSALM be declared null and void for violating such right, as defined by international law and by domestic law
establishing the States obligation to ensure water security for its people.
In its Comment With Urgent Motion to Lift Status Quo Ante Order, respondent PSALM prayed for the dismissal of the petition
on the following procedural grounds: (a) a petition for certiorari is not the proper remedy because PSALM was not acting as a
tribunal or board exercising judicial or quasi-judicial functions when it commenced the privatization of AHEPP; (b) the present
petition is rendered moot by the issuance of a Notice of Award in favor of K-Water; (c) assuming the petition is not mooted by
such contract award, this Court has no jurisdiction over the subject matter of the controversy involving a political question,
and also because if it were the intent of Congress to exclude the AHEPP in the privatization of NPC assets, it should have
clearly expressed such intent as it did with the Agus and Pulangui power plants under Sec. 47 of the EPIRA; (d) petitioners lack
of standing to question the bidding process for failure to show any injury as a result thereof, while Rep. Walden Bello likewise
does not have such legal standing in his capacity as a duly elected member of the House of Representatives as can be gleaned
from the rulings in David v. Arroyo11ςrνll and Philippine Constitutional Association v. Enriquez.12ςrνll
On the alleged violation of petitioners right to information, PSALM avers that it conducted the bidding in an open and
transparent manner, through a series of events in accordance with the governing rules on public bidding. The non-disclosure
of certain information in the invitation to bid was understandable, such as the minimum or reserve price which are still subject
to negotiation and approval of PSALMs Board of Directors. The ruling in Chavez v. Public Estates Authority13ςrνll is
inapplicable since it involved government property which has become unserviceable or was no longer needed and thus fell
under Sec. 79 of the Government Auditing Code whereas the instant case concerns a hydroelectric power plant adjacent to a
dam which still provides water supply to Metro Manila. In the bidding for the AHEPP, PSALM claims that it relied on the Rules
and Regulations Implementing the EPIRA, as well as COA Circular No. 89-296 on the general procedures for bidding by
government agencies and instrumentalities of assets that will be divested or government property that will be disposed of.
PSALM likewise avers that it was constrained to deny petitioner IDEALS letter dated April 20, 2010 requesting documents
relative to the privatization of Angat Dam due to non-submission of a Letter of Interest, Confidentiality and Undertaking and
non-payment of the Participation Fee. With regard to IDEALS request for information about the winning bidder, as contained
in its letter dated May 14, 2010, the same was already referred to respondent K-Waters counsel for appropriate action.
In any case, PSALM maintains that not all details relative to the privatization of the AHEPP can be readily disclosed; the
confidentiality of certain matters was necessary to ensure the optimum bid price for the property.
PSALM further refutes the assertion of petitioners that the Angat Complex is an indivisible system and co-owned with MWSS
and NIA. It contends that MWSSs contribution in the funds used for the construction of the AHEPP did not give rise to a
regime of co-ownership as the said funds were merely in exchange for the supply of water that MWSS would get from the
Angat Dam, while the Umiray-AngatTransbasin Rehabilitation Project the improvement and repair of which were funded by
MWSS, did not imply a co-ownership as these facilities are located in remote places. Moreover, PSALM points out that PSALM,
MWSS and NIA each was issued a water permit, and are thus holders of separate water rights.
On the alleged violation of petitioners and the peoples right to water, PSALM contends that such is baseless and proceeds
from the mistaken assumption that the Angat Dam was sold and as a result thereof, the continuity and availability of domestic
water supply will be interrupted. PSALM stresses that only the hydroelectric facility is being sold and not the Angat Dam which
remains to be owned by PSALM, and that the NWRB still governs the water allocation therein while the NPC-FFWSDO still
retains exclusive control over the opening of spillway gates during rainy season. The foregoing evinces the continued
collective control by government agencies over the Angat Dam, which in the meantime, is in dire need of repairs, the cost of
which cannot be borne by the Government.
PSALM further debunks the nationality issue raised by petitioners, citing previous opinions rendered by the Department of
Justice (DOJ) consistently holding that the utilization of water by a hydroelectric power plant does not constitute
appropriation of water from its natural source considering that the source of water (dam) that enters the intake gate of the
power plant is an artificial structure. Moreover, PSALM is mindful of the States duty to protect the publics right to water when
it sold the AHEPP. In fact, such concern as taken into consideration by PSALM in devising a privatization scheme for the AHEPP
whereby the water allocation is continuously regulated by the NWRB and the dam and its spillway gates remain under the
ownership and control of NPC.
In its Comment,14ςrνll respondent MWSS asserts that by virtue of its various statutory powers since its creation in 1971,
which includes the construction, maintenance and operation of dams, reservoir and other waterworks within its territorial
jurisdiction, it has supervision and control over the Angat Dam given that the Angat Reservoir supplies approximately 97% of
the water requirements of Metro Manila. Over the course of its authority over the Angat Dam, Dykes and Reservoir, MWSS
has incurred expenses to maintain their upkeep, improve and upgrade their facilities. Thus, in 1962, MWSS contributed about
20% for the construction cost of the Angat Dam and Dykes (then equivalent to about P 21 million); in 1992, MWSS contributed
about P 218 million for the construction of Auxiliary Unit No. 5; in 1998, MWSS contributed P 73.5 million for the construction
cost of the low level outlet; and subsequently, MWSS invested P 3.3 billion to build the Umiray-AngatTransbasin Tunnel to
supplement the water supply available from the Angat Dam, which tunnel contributes a minimum of about 9 cubic meters per
second to the Angat Reservoir, thus increasing power generation. MWSS argues that its powers over waterworks are vested
upon it by a special law (MWSS Charter) which prevails over the EPIRA which is a general law, as well as other special laws,
issuances and presidential edicts. And as contained in Sec. 1 of the MWSS Charter, which remains valid and effective, it is
expressly provided that the establishment, operation and maintenance of waterworks systems must always be supervised by
the State.
MWSS further alleges that after the enactment of EPIRA, it had expressed the desire to acquire ownership and control of the
AHEPP so as not to leave the operation of the Angat Reservoir to private discretion that may prejudice the water allocation to
MWSS as dictated by NWRB rules.
Representations were thereafter made with the Office of the President (OP) for the turn over of the management of these
facilities to MWSS, and joint consultation was also held with PSALM officials for the possibility of a Management Committee to
manage and control the Angat Dam Complex under the chairmanship of the water sector, which position was supported by
former Secretary HermogenesEbdane of the Department of Public Works and Highways (DPWH). In March 2008, PSALM
proposed the creation of an inter-agency technical working group (TWG) to draft the Operations and Maintenance (O & M)
Agreement for the AHEPP that will be in effect after its privatization. PSALM likewise sought the view of the Office of the
Government Corporate Counsel (OGCC) which opined that PSALM may turn over the facility to a qualified entity such as
MWSS without need of public bidding. In 2009, various local governments supported the transfer of the control and
management of the AHEPP to MWSS, while the League of Cities and Municipalities interposed its opposition to the
privatization of the AHEPP fearing that it might increase the cost of water in Metro Manila, and also because it will be
disadvantageous to the national government since the AHEPP only contributes 246 MW of electricity to the Luzon Grid. Even
the CHR has advised the Government to reassess its privatization policy and to always consider paramount the most basic
resources necessary and indispensable for human survival, which includes water.
MWSS further avers that upon the facilitation of the OGCC and participated in by various stakeholders, including its two
concessionaires, Manila Water Company, Inc. and Maynilad Water Services, Inc., various meetings and conferences were held
relative to the drafting of the
Memorandum of Agreement on the Angat Water Protocol. On April 20, 2010, the final draft of the Angat Water Protocol was
finally complete. However, as of June 18, 2010, only MWSS and NIA signed the said final draft. MWSS thus contends that
PSALM failed to institute any safeguards as prescribed in Sec. 47 of the EPIRA when it proceeded with the privatization of the
AHEPP.
As to the issue of nationality requirement in the appropriation of water resources under the Constitution, MWSS cites the
case of Manila Prince Hotel v. Government Service Insurance System15ςrνll which interpreted paragraph 2, Sec. 10, Art. XII of
the 1987 Constitution providing that "in the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos" to imply "a mandatory, positive command which is complete
in itself and which needs no further guidelines or implementing laws or rules for its enforcement x xx and is per se judicially
enforceable." In this case, the AHEPP is in dire danger of being wholly-owned by a Korean corporation which probably merely
considers it as just another business opportunity, and as such cannot be expected to observe and ensure the smooth
facilitation of the more critical purposes of water supply and irrigation.
Respondent First Gen Northern Energy Corporation (FGNEC) also filed a Comment16ςrνll disagreeing with the contentions of
petitioners and respondent MWSS on account of the following: (1) the NPC charter vested upon it complete jurisdiction and
control over watersheds like the Angat Watershed surrounding the reservoir of the power plants, and hence Art. 498 of the
Civil Code is inapplicable; (2) NPC, MWSS and NIA are not co-owners of the various rights over the Angat Dam as in fact each
of them holds its own water rights; (3) the State through the EPIRA expressly mandates PSALM to privatize all NPC assets,
which necessarily includes the AHEPP; (4) the privatization of the AHEPP will not affect the priority of water for domestic and
municipal uses as there are sufficient safeguards to ensure the same, and also because the Water Code specifically mandates
that such use shall take precedence over other uses, and even the EPIRA itself gives priority to use of water for domestic and
municipal purposes over power generation; (5) the Water Protocol also safeguards priority of use of water for domestic
purposes; (6) the bidding procedure for the AHEPP was valid, and the bidding was conducted by PSALM in an open and
transparent manner; and (7) the right to information of petitioners and the public in general was fully satisfied, and PSALM
adopted reasonable rules and regulations for the orderly conduct of its functions pursuant to its mandate under the EPIRA.
FGNEC nevertheless prays of this Court to declare the nationality requirements for the ownership, operation and maintenance
of the AHEPP as prescribed by the Constitution and pertinent laws. Considering the allegation of petitioners that K-Water is
owned by the Republic of South Korea, FGNEC asserts that PSALM should not have allowed said entity to participate in the
bidding because under our Constitution, the exploration, development and utilization of natural resources are reserved to
Filipino citizens or to corporations with 60% of their capital being owned by Filipinos.
Respondent NIA filed its Comment17ςrνll stating that its interest in this case is limited only to the protection of its water
allocation drawn from the Angat Dam as determined by the NWRB. Acknowledging that it has to share the meager water
resources with other government agencies in fulfilment of their respective mandate, NIA submits that it is willing to sit down
and discuss issues relating to water allocation, as evidenced by the draft Memorandum of Agreement on the Angat Water
Protocol. Since the reliefs prayed for in the instant petition will not be applicable to NIA which was not involved in the bidding
conducted by PSALM, it will thus not be affected by the outcome of the case.
Respondents San Miguel Corporation (SMC), DMCI Power Corporation, Trans-Asia Oil and Energy Development Corporation
and SNAboitiz Power-Pangasinan, Inc. filed their respective Comments18ςrνllwith common submission that they are not real
parties-in-interest and should be excluded from the case. They assert that PSALM acted pursuant to its mandate to privatize
the AHEPP when it conducted the bidding, and there exists no reason for them to take any action to invalidate the said
bidding wherein they lost to the highest bidder K-Water.
On its part, respondent K-Water filed a Manifestation In Lieu of Comment19ςrνll stating that it is not in a position to respond
to petitioners allegations, having justifiably relied on the mandate and expertise of PSALM in the conduct of public bidding for
the privatization of the AHEPP and had no reason to question the legality or constitutionality of the privatization process,
including the bidding. K-Water submits that its participation in the bidding for the AHEPP was guided at all times by an abiding
respect for the Constitution and the laws of the Philippines, and hopes for a prompt resolution of the present petition to
further strengthen and enhance the investment environment considering the level of investment entailed, not only in financial
terms by providing a definitive resolution and reliable guidance for investors, whether Filipino or foreign, as basis for effective
investment and business decisions.
In their Consolidated Reply,20ςrνll petitioners contend that the instant petition is not mooted with the issuance of a Notice of
Award to K-Water because the privatization of AHEPP is not finished until and unless the deed of absolute sale has been
executed. They cite the ruling in David v. Arroyo,21ςrνll that courts will decide cases, otherwise moot and academic,
if:chanroblesvirtuallawlibrary
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 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.
Petitioners reiterate their legal standing to file the present suit in their capacity as taxpayers, or as Filipino citizens asserting
the promotion and protection of a public right, aside from being directly injured by the proceedings of PSALM. As to the
absence of Certification and Verification of Non-Forum Shopping from petitioner Bello in the file copy of PSALM, the same was
a mere inadvertence in photocopying the same.
On the matter of compliance with an open and transparent bidding, petitioners also reiterate as held in Chavez v. Public
Estates Authority,22ςrνll that the Courts interpretation of public bidding applies to any law which requires public bidding,
especially since Sec. 79 of the Government Auditing Code does not enumerate the data that must be disclosed to the public.
PSALM should have followed the minimum requirements laid down in said case instead of adopting the "format generally
used by government entities in their procurement of goods, infrastructure and consultancy services," considering that what
was involved in Chavez is an amended Joint Venture Agreement which seeks to transfer title and ownership over government
property. Petitioners point out that the requirement under COA Circular 89-296 as regards confidentiality covers only sealed
proposals and not all information relating to the AHEPP privatization. PSALMs simple referral of IDEALS request letter to the
counsel of K-Water is very telling, indicating PSALMs limited knowledge about a company it allowed to participate in the
bidding and which even won the bidding.
On the transfer of water rights to K-Water, petitioners reiterate that this violates the Water Code, and contrary to PSALMs
statements, once NPC transfers its water permit to K-Water, in accordance with the terms of the Asset Purchase Agreement,
NPC gives up its authority to extract or utilize water from the Angat River. Petitioners further assert that the terms of the sale
of AHEPP allowing the buyer the operation and management of the Non-Power Components, constitutes a relinquishment of
government control over the Angat Dam, in violation of Art. XII, Sec. 2 of the Constitution. PSALM likewise has not stated that
all stakeholders have signed the Water Protocol. Such absence of a signed Water Protocol is alarming in the light of PSALMs
pronouncement that the terms of the sale to K-Water would still subject to negotiation. Is PSALMs refusal to sign the Water
Protocol part of its strategy to negotiate the terms of the sale with the bidders? If so, then PSALM is blithely and cavalierly
bargaining away the Filipinos right to water.
Responding to the claims of MWSS in its Comment, PSALM contends that MWSSs allegations regarding the bidding process is
belied by MWSSs own admission that it held discussions with PSALM to highlight the important points and issues surrounding
the AHEPP privatization that needed to be threshed out. Moreover, MWSS also admits having participated, along with other
agencies and stakeholders, various meetings and conferences relative to the drafting of a Memorandum of Agreement on the
Angat Water Protocol.
As regards the Angat Dam, PSALM emphasizes that MWSS never exercised jurisdiction and control over the said facility.
PSALM points out that the Angat Dam was constructed in 1967, or four years before the enactment of Republic Act No. 6234,
upon the commissioning thereof by the NPC and the consequent construction by Grogun, Inc., a private corporation. MWSS
attempt to base its claim of jurisdiction over the Angat Dam upon its characterization of EPIRA as a general law must likewise
fail. PSALM explains that EPIRA cannot be classified as a general law as it applies to a particular portion of the State, i.e., the
energy sector. The EPIRA must be deemed an exception to the provision in the Revised MWSS Charter on MWSSs general
jurisdiction over waterworks systems.
PSALM stresses that pursuant to the EPIRA, PSALM took ownership of all existing NPC generation assets, liabilities, IPP
contracts, real estate and other disposable assets, which necessarily includes the AHEPP Complex, of which the Angat Dam is
part. As to the OGCC opinion cited by MWSS to support its position that control and management of the Angat Dam Complex
should be turned over to MWSS, the OGCC had already issued a second opinion dated August 20, 2008 which clarified the
tenor of its earlier Opinion No. 107, s. 2008, stating that "the disposal of the Angat HEPP by sale through public bidding the
principal mode of disposition under EPIRA remains PSALMs primary option." Moreover, as pointed out by the National
Economic Development Authority (NEDA) in its letter dated September 16, 2009, the ownership and operation of a
hydropower plant goes beyond the mandate of MWSS. This view is consistent with the provisions of EPIRA mandating the
transfer of ownership and control of NPC generation assets, IPP Contracts, real estate and other disposable assets to a private
person or entity. Consequently, a transfer to another government entity of the said NPC assets would be a clear violation of
the EPIRA. Even assuming such is allowed by EPIRA, it would not serve the objective of the EPIRA, i.e., that of liquidating all
NPCs financial obligations and would merely transfer NPCs debts from the hands of one government entity to another, the
funds that would be utilized by MWSS in the acquisition of the AHEPP would doubtless come from the pockets of the Filipino
people.
As regards the opposition of various local government units to the sale of the AHEPP, PSALM said that a forum was held
specifically to address their concerns. After the said forum, these LGUs did not anymore raise the same concerns; such
inaction on their part could be taken as an acquiescence to, and acceptance of, the explanations made by PSALM during the
forum.
PSALM had made it clear that it is only the AHEPP and not the Angat Dam which was being privatized. The same wrong
premise underpinned the position of the CHR with its erroneous allegation that MWSS is allowed, under its Revised Charter,
to operate and maintain a power plant.
PSALM further contends that the sale of AHEPP to K-Water did not violate the Constitutions provision on the States natural
resources and neither is the ruling in Manila Prince Hotel applicable as said case was decided under different factual
circumstances. It reiterates that the AHEPP, being a generation asset, can be sold to a foreign entity, under the EPIRA, in
accordance with the policy reforms said law introduced in the power sector; the EPIRA aims to enable open access in the
electricity market and then enable the government to concentrate more fully on the supply of basic needs to the Filipino
people. Owing to the competitive and open nature of the generation sector, foreign corporation may own generation assets.
Issues
The present controversy raised the following issues:
1) Legal standing of petitioners;
2) Mootness of the petition;
3) Violation of the right to information;
4) Ownership of the AHEPP;
5) Violation of Sec. 2, Art. XII of the Constitution;
6) Violation of the Water Code provisions on the grant of water rights; and
7) Failure of PSALM to comply with Sec. 47 (e) of EPIRA.
Mootness and Locus Standi
PSALMs contention that the present petition had already been mooted by the issuance of the Notice of Award to K-Water is
misplaced. Though petitioners had sought the immediate issuance of injunction against the bidding commenced by PSALM --
specifically enjoining it from proceeding to the next step of issuing a notice of award to any of the bidders -- they further
prayed that PSALM be permanently enjoined from disposing of the AHEPP through privatization. The petition was thus filed
not only as a means of enforcing the States obligation to protect the citizens "right to water" that is recognized under
international law and legally enforceable under our Constitution, but also to bar a foreign corporation from exploiting our
water resources in violation of Sec. 2, Art. XII of the 1987 Constitution. If the impending sale of the AHEPP to K-Water indeed
violates the Constitution, it is the duty of the Court to annul the contract award as well as its implementation. As this Court
held inChavez v. Philippine Estates Authority,23ςrνll "supervening events, whether intended or accidental, cannot prevent the
Court from rendering a decision if there is a grave violation of the Constitution."
We also rule that petitioners possess the requisite legal standing in filing this suit as citizens and taxpayers.
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being challenged, alleging more than a
generalized grievance. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions."24ςrνll This Court, however, has adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as
when the issues raised are of paramount importance to the public.25ςrνll Thus, when the proceeding involves the assertion of
a public right, the mere fact that the petitioner is a citizen satisfies the requirement of personal interest.26ςrνll
There can be no doubt that the matter of ensuring adequate water supply for domestic use is one of paramount importance
to the public. That the continued availability of potable water in Metro Manila might be compromised if PSALM proceeds with
the privatization of the hydroelectric power plant in the Angat Dam Complex confers upon petitioners such personal stake in
the resolution of legal issues in a petition to stop its implementation.
Moreover, we have held that if the petition is anchored on the peoples right to information on matters of public concern, any
citizen can be the real party in interest. The requirement of personal interest is satisfied by the mere fact that the petitioner is
a citizen, and therefore, part of the general public which possesses the right. There is no need to show any special interest in
the result. It is sufficient that petitioners are citizens and, as such, are interested in the faithful execution of the laws.27ςrνll
Violation of Right to Information
The peoples right to information is provided in Section 7, Article III of the Constitution, which reads:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and
to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Emphasis
supplied.)
The peoples constitutional right to information is intertwined with the governments constitutional duty of full public
disclosure of all transactions involving public interest.28ςrνll Section 28, Article II of the Constitution declares the State policy
of full transparency in all transactions involving public interest, to wit:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure
of all its transactions involving public interest. (Italics supplied.)
The foregoing constitutional provisions seek to promote transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information to exercise effectively other constitutional rights. They are
also essential to hold public officials "at all times x xx accountable to the people," for unless citizens have the proper
information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies and their effective implementation. An
informed citizenry is essential to the existence and proper functioning of any democracy.29ςrνll
Consistent with this policy, the EPIRA was enacted to provide for "an orderly and transparent privatization" of NPCs assets and
liabilities.30ςrνll Specifically, said law mandated that "all assets of NPC shall be sold in an open and transparent manner
through public bidding."31ςrνll
In Chavez v. Public Estates Authority32ςrνll involving the execution of an Amended Joint Venture Agreement on the
disposition of reclaimed lands without public bidding, the Court held:
x x xBefore the consummation of the contract, PEA must, on its own and without demand from anyone, disclose to the public
matters relating to the disposition of its property. These include the size, location, technical description and nature of the
property being disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and
similar information. PEA must prepare all these data and disclose them to the public at the start of the disposition process,
long before the consummation of the contract, because the Government
Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at
any time during the bidding process.
Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review
committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there
are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official
recommendation, there arises a "definite proposition" on the part of the government. From this moment, the publics right to
information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition. In
Chavez v. PCGG, the Court ruled as follows:
"Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as
well as other government representatives, to disclose sufficient public information on any proposed settlement they have
decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to
definite propositions of the government not necessarily to intra-agency or inter-agency recommendations or communications
during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There
is need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier such as on
matters involving national security, diplomatic or foreign relations, intelligence and other classified information." (Emphasis
supplied.)
Chavez v. Public Estates Authority thus laid down the rule that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information, however, must constitute definite propositions
by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets
and similar matters affecting national security and public order. In addition, Congress has prescribed other limitations on the
right to information in several legislations.33ςrνll
In this case, petitioners first letter dated April 20, 2010 requested for documents such as Terms of Reference and proposed
bids submitted by the bidders. At that time, the bids were yet to be submitted at the bidding scheduled on April 28, 2010. It is
also to be noted that PSALMs website carried news and updates on the sale of AHEPP, providing important information on
bidding activities and clarifications regarding the terms and conditions of the Asset Purchase Agreement (APA) to be signed by
PSALM and the winning bidder (Buyer).34ςrνll
In Chavez v. National Housing Authority,35ςrνll the Court held that pending the enactment of an enabling law, the release of
information through postings in public bulletin boards and government websites satisfies the constitutional requirement,
thus:
It is unfortunate, however, that after almost twenty (20) years from birth of the 1987 Constitution, there is still no enabling
law that provides the mechanics for the compulsory duty of government agencies to disclose information on government
transactions. Hopefully, the desired enabling law will finally see the light of day if and when Congress decides to approve the
proposed "Freedom of Access to Information Act." In the meantime, it would suffice that government agencies post on their
bulletin boards the documents incorporating the information on the steps and negotiations that produced the agreements
and the agreements themselves, and if finances permit, to upload said information on their respective websites for easy
access by interested parties. Without any law or regulation governing the right to disclose information, the NHA or any of the
respondents cannot be faulted if they were not able to disclose information relative to the SMDRP to the public in
general.36ςrνll (Emphasis supplied.)
The Court, however, distinguished the duty to disclose information from the duty to permit access to information on matters
of public concern under Sec. 7, Art. III of the Constitution. Unlike the disclosure of information which is mandatory under the
Constitution, the other aspect of the peoples right to know requires a demand or request for one to gain access to documents
and paper of the particular agency. Moreover, the duty to disclose covers only transactions involving public interest, while the
duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but
any matter contained in official communications and public documents of the government agency.37ςrνll Such relief must be
granted to the party requesting access to official records, documents and papers relating to official acts, transactions, and
decisions that are relevant to a government contract.
Here, petitioners second letter dated May 14, 2010 specifically requested for detailed information regarding the winning
bidder, such as company profile, contact person or responsible officer, office address and Philippine registration. But before
PSALM could respond to the said letter, petitioners filed the present suit on May 19, 2010. PSALMs letter-reply dated May 21,
2010 advised petitioners that their letter-re quest was referred to the counsel of K-Water. We find such action insufficient
compliance with the constitutional requirement and inconsistent with the policy under EPIRA to implement the privatization
of NPC assets in an "open and transparent" manner. PSALMs evasive response to the request for information was unjustified
because all bidders were required to deliver documents such as company profile, names of authorized
officers/representatives, financial and technical experience.
Consequently, this relief must be granted to petitioners by directing PSALM to allow petitioners access to the papers and
documents relating to the company profile and legal capacity of the winning bidder. Based on PSALMs own press releases, K-
Water is described as a Korean firm with extensive experience in implementing and managing water resources development
projects in South Korea, and also contributed significantly to the development of that countrys heavy and chemical industries
and the modernization of its national industrial structure.
AngatHEPP is Under the Jurisdiction of
the Department of Energy Through NPC
It must be clarified that though petitioners had alleged a co-ownership by virtue of the joint supervision in the operation of
the Angat Complex by MWSS, NPC and NIA, MWSS actually recognized the ownership and jurisdiction of NPC over the
hydroelectric power plant itself. While MWSS had initially sought to acquire ownership of the AHEPP without public bidding, it
now prays that PSALM be ordered to turn over the possession and control of the said facility to MWSS. MWSS invokes its own
authority or "special powers" by virtue of its general jurisdiction over waterworks systems, and in consideration of its
substantial investments in the construction of two auxiliary units in the AHEPP, as well as the construction of the Umiray-
AngatTransbasin Tunnel to supplement the water intake at the Angat Reservoir which resulted in increased power generation.
Records disclosed that as early as December 2005, following the decision of PSALMs Board of Directors to commence the sale
process of the AHEPP along with Magat and AmlanHEPPs in August 2005, MWSS was actively cooperating and working with
PSALM regarding the proposed Protocol for the Privatization of the AHEPP, specifically on the terms and conditions for the
management, control and operation of the Angat Dam Complex taking into consideration the concerns of its concessionaires.
A Technical Working Group (TWG) similar to that formed for the Operation and Management Agreement of Pantabangan and
Magat dams was created, consisting of representatives from PSALM, MWSS and other concerned agencies, to formulate
strategies for the effective implementation of the privatization of AHEPP and appropriate structure for the operation and
management of the Angat Dam Complex.38ςrνll
In March 2008, PSALM sought legal advice from the OGCC on available alternatives to a sale structure for the AHEPP. On May
27, 2008, then Government Corporate Counsel Alberto C. Agra issued Opinion No. 107, s. 200839ςrνll stating that PSALM is
not limited to "selling" as a means of fulfilling its mandate under the EPIRA, and that in dealing with the AHEPP, PSALM has
the following options:
1. Transfer the ownership, possession, control, and operation of the Angat Facility to another entity, which may or may not be
a private enterprise, as specifically provided under Section 47 (e) of RA 9136;
2. Transfer the Angat Facility, through whatever form, to another entity for the purpose of protecting the public
interest.40ςrνll
The OGCC cited COA Circular No. 89-296 which provides that government property or assets that are no longer serviceable or
needed "may be transferred to other government entities/agencies without cost or at an appraised value upon authority of
the head or governing body of the agency or corporation, and upon due accomplishment of an Invoice and Receipt of
Property." Pointing out the absence of any prohibition under R.A. No. 9136 and its IRR for PSALM to transfer the AHEPP to
another government instrumentality, and considering that MWSS is allowed under its charter to acquire the said facility, the
OGCC expressed the view that PSALM may, "in the interest of stemming a potential water crisis, turn over the ownership,
operations and management of the Angat Facility to a qualified entity, such as the MWSS, without need of public bidding as
the latter is also a government entity."41ςrνll
Consequently, MWSS requested the Office of the President (OP) to exclude the AHEPP from the list of NPC assets to be
privatized under the EPIRA. Said request was endorsed to the Department of Finance (DOF) which requested the National
Economic Development Authority (NEDA) to give its comments. Meanwhile, on August 20, 2008, the OGCC issued a
Clarification42ςrνll on its Opinion No. 107, s. 2008 stating that the tenor of the latter issuance was "permissive" and
"necessarily, the disposal of the AHEPP by sale through public bidding the principal mode of disposition under x xx R.A. 9136
remains PSALMs primary option." The OGCC further explained its position, thus:
If, in the exercise of PSALMs discretion, it determines that privatization by sale through public bidding is the best mode to
fulfill its mandate under R.A. 9136, and that this mode will not contravene the States declared policy on water resources, then
the same is legally permissible.
Finally, in OGCC Opinion No. 107 s. 2008, this Office underscored "the overriding policy of the State x xx recognizing that
water is vital to national development x xx and the crucial role which the Angat Facility plays in the uninterrupted and
adequate supply and distribution of potable water to residents of Metro Manila." This Office reiterates "the primacy of the
States interest in mitigating the possible deleterious effects of an impending "water crisis" encompassing areas even beyond
Metro Manila." Any transfer of the AHEPP to be undertaken by PSALM whether to a private or public entity must not
contravene the States declared policy of ensuring the flow of clean, potable water under RA 6395 and 9136, and Presidential
Decree 1067. Hence, said transfer and/or privatization scheme must ensure the preservation of the AHEPP as a vital source of
water for Metro Manila and the surrounding provinces.43ςrνll (Emphasis supplied.)
On September 16, 2009, NEDA Deputy Director General Rolando G. Tungpalan, by way of comment to MWSSs position, wrote
the DOF stating that MWSSs concern on ensuring an uninterrupted and adequate supply of water for domestic use is amply
protected and consistently addressed in the EPIRA. Hence, NEDA concluded that there appears to be no basis to exclude
AHEPP from the list of NPC generation assets to be privatized and no compelling reason to transfer its management,
operations and control to MWSS.44ςrνll NEDA further pointed out that:
Ownership and operation of a hydropower plant, however, goes beyond the mandate of MWSS. To operate a power
generation plant, given the sectors legislative setup would require certification and permits that has to be secured by the
operator. MWSS does not have the technical capability to undertake the operation and maintenance of the AHEPP nor
manage the contract of a contracted private party to undertake the task for MWSS. While MWSS may tap NPC to operate and
maintain the AHEPP, this, similar to contracting out a private party, may entail additional transaction costs, and ultimately
result to higher generation rates.45ςrνll (Emphasis supplied.)
Thereafter, MWSS sought the support of the DPWH in a letter dated September 24, 2009 addressed to then Secretary
Hermogenes E. Ebdane, Jr., for the exclusion of the AHEPP from the list of NPC assets to be privatized and instead transfer the
ownership, possession and control thereof to MWSS with reasonable compensation. Acting on the said request, Secretary
Ebdane, Jr. wrote a memorandum for the President recommending that "the Angat Dam be excluded from the list of NPC
assets to be privatized, and that the ownership, management and control of the Dam be transferred from NPC to MWSS, with
reasonable compensation."46ςrνll
Based on the foregoing factual backdrop, there seems to be no dispute as to the complete jurisdiction of NPC over the
government-owned Angat Dam and AHEPP.
The Angat Reservoir and Dam were constructed from 1964 to 1967 and have become operational since 1968. They have
multiple functions:
1) To provide irrigation to about 31,000 hectares of land in 20 municipalities and towns in Pampanga and Bulacan;
2) To supply the domestic and industrial water requirements of residents in Metro Manila;
3) To generate hydroelectric power to feed the Luzon Grid; and
4) To reduce flooding to downstream towns and villages.47ςrνll
The Angat Dam is a rockfill dam with a spillway equipped with three gates at a spilling level of 219 meters and has storage
capacity of about 850 million cubic meters. Water supply to the MWSS is released through five auxiliary turbines where it is
diverted to the two tunnels going to the Ipo Dam.48ςrνll The Angat Dam is one of the dams under the management of NPC
while the La Mesa and Ipo dams are being managed by MWSS. MWSS is a government corporation existing by virtue of R.A.
No. 6234.49ςrνll NAPOCOR or NPC is also a government-owned corporation created under Commonwealth Act (C.A.) No.
120,50ςrνll which, among others, was vested with the following powers under Sec. 2, paragraph (g):
(g) To construct, operate and maintain power plants, auxiliary plants, dams, reservoirs, pipes, mains, transmission lines, power
stations and substations, and other works for the purpose of developing hydraulic power from any river, creek, lake, spring
and waterfall in the Philippines and supplying such power to the inhabitants thereof; to acquire, construct, install, maintain,
operate and improve gas, oil, or steam engines, and/or other prime movers, generators and other machinery in plants and/or
auxiliary plants for the production of electric power; to establish, develop, operate, maintain and administer power and
lighting system for the use of the Government and the general public; to sell electric power and to fix the rates and provide for
the collection of the charges for any service rendered: Provided, That the rates of charges shall not be subject to revision by
the Public Service Commission;
x x x x (Emphasis supplied.)
On September 10, 1971, R.A. No. 6395 was enacted which revised the charter of NPC, extending its corporate life to the year
2036. NPC thereafter continued to exercise complete jurisdiction over dams and power plants including the Angat Dam, Angat
Reservoir and AHEPP. While the NPC was expressly granted authority to construct, operate and maintain power plants, MWSS
was not vested with similar function. Section 3 (f), (o) and (p) of R.A. No. 6234 provides that MWSSs powers and attributes
include the following
(f) To construct, maintain, and operate dams, reservoirs, conduits, aqueducts, tunnels, purification plants, water mains, pipes,
fire hydrants, pumping stations, machineries and other waterworks for the purpose of supplying water to the inhabitants of its
territory, for domestic and other purposes; and to purify, regulate and control the use, as well as prevent the wastage of
water;
xxxx
(o) To assist in the establishment, operation and maintenance of waterworks and sewerage systems within its jurisdiction
under cooperative basis;
(p) To approve and regulate the establishment and construction of waterworks and sewerage systems in privately owned
subdivisions within its jurisdiction; x xx. (Emphasis supplied.)
On December 9, 1992, by virtue of R.A. No. 7638,51ςrνll NPC was placed under the Department of Energy (DOE) as one of its
attached agencies.
Aside from its ownership and control of the Angat Dam and AHEPP, NPC was likewise mandated to exercise complete
jurisdiction and control over its watershed, pursuant to Sec. 2 (n) and (o) of R.A. No. 6395 for development and conservation
purposes:
(n) To exercise complete jurisdiction and control over watersheds surrounding the reservoirs of plants and/or projects
constructed or proposed to be constructed by the Corporation. Upon determination by the Corporation of the areas required
for watersheds for a specific project, the Bureau of Forestry, the Reforestation Administration and the Bureau of Lands shall,
upon written advice by the Corporation, forthwith surrender jurisdiction to the Corporation of all areas embraced within the
watersheds, subject to existing private rights, the needs of waterworks systems, and the requirements of domestic water
supply;
(o) In the prosecution and maintenance of its projects, the Corporation shall adopt measures to prevent environmental
pollution and promote the conservation, development and maximum utilization of natural resources; and
x x x x (Emphasis supplied.)
On December 4, 1965, Presidential Proclamation No. 505 was issued amending Proclamation No. 71 by transferring the
administration of the watersheds established in Montalban, San Juan del Monte, Norzagaray, Angat, San Rafael, Peranda and
Infanta, Provinces of Rizal, Bulacan, Nueva Ecija and Quezon, to NPC. Subsequent executive issuances Presidential Decree
(P.D.) No. 1515 which was signed in June 1978 and amended by P.D. No. 1749 in December 1980 led to the creation of the
NPC Watershed Management Division which presently has 11 watershed areas under its management.52ςrνll
Privatization of AHEPP Mandatory Under EPIRA
With the advent of EPIRA in 2001, PSALM came into existence for the principal purpose of managing the orderly sale,
privatization and disposition of generation assets, real estate and other disposable assets of the NPC including IPP Contracts.
Accordingly, PSALM was authorized to take title to and possession of, those assets transferred to it. EPIRA mandated that all
such assets shall be sold through public bidding with the exception of Agus and Pulangui complexes in Mindanao, the
privatization of which was left to the discretion of PSALM in consultation with Congress,53ςrνll thus:
Sec. 47. NPC Privatization. Except for the assets of SPUG, the generation assets, real estate, and other disposable assets as
well as IPP contracts of NPC shall be privatized in accordance with this Act. Within six (6) months from the effectivity of this
Act, the PSALM Corp. shall submit a plan for the endorsement by the Joint Congressional Power Commission and the approval
of the President of the Philippines, on the total privatization of the generation assets, x xx of NPC and thereafter, implement
the same, in accordance with the following guidelines, except as provided for in paragraph (f)
herein:chanroblesvirtuallawlibrary
x xxx
(d) All assets of NPC shall be sold in an open and transparent manner through public bidding, x xx;
x xxx
(f) The Agus and the Pulangui complexes in Mindanao shall be excluded from among the generation companies that will be
initially privatized. Their ownership shall be transferred to the PSALM Corp. and both shall continue to be operated by the
NPC. Said complexes may be privatized not earlier than ten (10) years from the effectivity of this Act, x xx.The privatization of
Agus and Pulangui complexes shall be left to the discretion of PSALM Corp. in consultation with Congress;
x xxx (Emphasis supplied.)
The intent of Congress not to exclude the AHEPP from the privatization of NPC generation assets is evident from the express
provision exempting only the aforesaid two power plants in Mindanao. Had the legislature intended that PSALM should
likewise be allowed discretion in case of NPC generation assets other than those mentioned in Sec. 47, it could have explicitly
provided for the same. But the EPIRA exempted from privatization only those two plants in Mindanao and the Small Power
Utilities Group (SPUG).54ςrνll Expressiouniusestexclusioalterius, the express inclusion of one implies the exclusion of all
others.55ςrνll
It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the
exclusion of all others. The rule is expressed in the familiar maxim, expressiouniusestexclusioalterius.
The rule of expressiouniusestexclusioalterius is formulated in a number of ways. One variation of the rule is principle that what
is expressed puts an end to that which is implied. Expressiumfacitcessaretacitum. Thus, where a statute, by its terms, is
expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.
x xxx
The rule of expressiouniusestexclusioalterius and its variations are canons of restrictive interpretation. They are based on the
rules of logic and the natural workings of the human mind. They are predicated upon ones own voluntary act and not upon
that of others. They proceed from the premise that the legislature would not have made specified enumeration in a statute
had the intention been not to restrict its meaning and confine its terms to those expressly mentioned.56ςrνll
The Court therefore cannot sustain the position of petitioners, adopted by respondent MWSS, that PSALM should have
exercised the discretion not to proceed with the privatization of AHEPP, or at least the availability of the option to transfer the
said facility to another government entity such as MWSS. Having no such discretion in the first place, PSALM committed no
grave abuse of discretion when it commenced the sale process of AHEPP pursuant to the EPIRA.
In any case, the Court finds that the operation and maintenance of a hydroelectric power plant is not among the statutorily
granted powers of MWSS. Although MWSS was granted authority to construct and operate dams and reservoirs, such was for
the specific purpose of supplying water for domestic and other uses, and the treatment, regulation and control of water
usage, and not power generation.57ςrνll Moreover, since the sale of AHEPP by PSALM merely implements the legislated
reforms for the electric power industry through schemes that aim "to enhance the inflow of private capital and broaden the
ownership base of the power generation, transmission and distribution sectors,"58ςrνll the proposed transfer to MWSS which
is another government entity contravenes that State policy. COA Circular No. 89-296 likewise has no application to NPC
generating assets which are still serviceable and definitely needed by the Government for the purpose of liquidating NPCs
accumulated debts amounting to billions in US Dollars. Said administrative circular cannot prevail over the EPIRA, a special law
governing the disposition of government properties under the jurisdiction of the DOE through NPC.
Sale of Government-Owned AHEPP
to a Foreign Corporation Not Prohibited
But Only Filipino Citizens and Corporations
60% of whose capital is owned by Filipinos
May be Granted Water Rights
The core issue concerns the legal implications of the acquisition by K-Water of the AHEPP in relation to the constitutional
policy on our natural resources.
Sec. 2, Art. XII of the 1987 Constitution provides in part:chanroblesvirtuallawlibrary
SEC.2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception
of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of
natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities,
or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be
provided by law. In case of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of
water power, beneficial use may be the measure and limit of the grant.
x xxx (Emphasis supplied.)
The States policy on the management of water resources is implemented through the regulation of water rights. Presidential
Decree No. 1067, otherwise known as "The Water Code of the Philippines" is the basic law governing the ownership,
appropriation utilization, exploitation, development, conservation and protection of water resources and rights to land
related thereto. The National Water Resources Council (NWRC) was created in 1974 under P.D. No. 424 and was subsequently
renamed as National Water Resources Board (NWRB) pursuant to Executive Order No. 124-A.59ςrνll The NWRB is the chief
coordinating and regulating agency for all water resources management development activities which is tasked with the
formulation and development of policies on water utilization and appropriation, the control and supervision of water utilities
and franchises, and the regulation and rationalization of water rates.60ςrνll
The pertinent provisions of Art. 3, P.D. No. 1067 provide:
Art. 3. The underlying principles of this code are:chanroblesvirtuallawlibrary
a. All waters belong to the State.
b. All waters that belong to the State can not be the subject to acquisitive prescription.
c. The State may allow the use or development of waters by administrative concession.
d. The utilization, exploitation, development, conservation and protection of water resources shall be subject to the control
and regulation of the government through the National Water Resources Council x xx
e. Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of
the country.
x xxx
Art. 9. Waters may be appropriated and used in accordance with the provisions of this Code.
Appropriation of water, as used in this Code, is the acquisition of rights over the use of waters or the taking or diverting of
waters from a natural source in the manner and for any purpose allowed by law.
Art. 10. Water may be appropriated for the following purposes:chanroblesvirtuallawlibrary
x xxx
(d) Power generation
x xxx
Art. 13. Except as otherwise herein provided, no person including government instrumentalities or government-owned or
controlled corporations, shall appropriate water without a water right, which shall be evidenced by a document known as a
water permit.
Water right is the privilege granted by the government to appropriate and use water.
x xxx
Art. 15. Only citizens of the Philippines, of legal age, as well as juridical persons, who are duly qualified by law to exploit and
develop water resources, may apply for water permits. (Emphasis supplied.)
It is clear that the law limits the grant of water rights only to Filipino citizens and juridical entities duly qualified by law to
exploit and develop water resources, including private corporations with sixty percent of their capital owned by Filipinos. In
the case of Angat River, the NWRB has issued separate water permits to MWSS, NPC and NIA.61ςrνll
Under the EPIRA, the generation of electric power, a business affected with public interest, was opened to private sector and
any new generation company is required to secure a certificate of compliance from the Energy Regulatory Commission (ERC),
as well as health, safety and environmental clearances from the concerned government agencies. Power generation shall not
be considered a public utility operation,62ςrνll and hence no franchise is necessary. Foreign investors are likewise allowed
entry into the electric power industry. However, there is no mention of water rights in the privatization of multi-purpose
hydropower facilities. Section 47 (e) addressed the issue of water security, as follows:
(e) In cases of transfer of possession, control, operation or privatization of multi-purpose hydro facilities, safeguards shall be
prescribed to ensure that the national government may direct water usage in cases of shortage to protect potable water,
irrigation, and all other requirements imbued with public interest;
x xxx (Emphasis supplied.)
This provision is consistent with the priority accorded to domestic and municipal uses of water63ςrνllunder the Water Code,
thus:
Art. 22. Between two or more appropriators of water from the same sources of supply, priority in time of appropriation shall
give the better right, except that in times of emergency the use of water for domestic and municipal purposes shall have a
better right over all other uses; Provided, That, where water shortage is recurrent and the appropriator for municipal use has
a lower priority in time of appropriation, then it shall be his duty to find an alternative source of supply in accordance with
conditions prescribed by the Board. (Emphasis supplied.)
Rule 23, Section 6 of the Implementing Rules and Regulations (IRR) of the EPIRA provided for the structure of appropriation of
water resources in multi-purpose hydropower plants which will undergo privatization, as follows:
Section 6. Privatization of Hydroelectric Generation Plants.
(a) Consistent with Section 47(e) of the Act and Section 4(f) of this Rule, the Privatization of hydro facilities of NPC shall cover
the power component including assignable long-term water rights agreements for the use of water, which shall be passed
onto and respected by the buyers of the hydroelectric power plants.
(b) The National Water Resources Board (NWRB) shall ensure that the allocation for irrigation, as indicated by the NIA and
requirements for domestic water supply as provided for by the appropriate Local Water District(s) are recognized and
provided for in the water rights agreements. NPC or PSALM may also impose additional conditions in the shareholding
agreement with the winning bidders to ensure national security, including, but not limited to, the use of water during drought
or calamity.
(c) Consistent with Section 34(d) of the Act, the NPC shall continue to be responsible for watershed rehabilitation and
management and shall be entitled to the environmental charge equivalent to one-fourth of one centavo per kilowatt-hour
sales (P0.0025/kWh), which shall form part of the Universal Charge. This environmental fund shall be used solely for
watershed rehabilitation and management and shall bemanaged by NPC under existing arrangements. NPC shall submit an
annual report to the DOE detailing the progress of the water shed rehabilitation program.
(d) The NPC and PSALM or NIA, as the case may be, shall continue to be responsible for the dam structure and all other
appurtenant structures necessary for the safe and reliable operation of the hydropower plants. The NPC and PSALM or NIA, as
the case may be, shall enter into an operations and maintenance agreement with the private operator of the power plant to
cover the dam structure and all other appurtenant facilities. (Emphasis supplied.)
In accordance with the foregoing implementing regulations, and in furtherance of the Asset Purchase
Agreement64ςrνll (APA), PSALM, NPC and K-Water executed on April 28, 2010 an Operations and Maintenance
Agreement65ςrνll (O & M Agreement) for the administration, rehabilitation, operation, preservation and maintenance, by K-
Water as the eventual owner of the AHEPP, of the Non-Power Components meaning the Angat Dam, non-power equipment,
facilities, installations, and appurtenant devices and structures, including the water sourced from the Angat Reservoir.
It is the position of PSALM that as the new owner only of the hydroelectric power plant, K-Water will be a mere operator of
the Angat Dam. In the power generation activity, K-Water will have to utilize the waters already extracted from the river and
impounded on the dam. This process of generating electric power from the dam water entering the power plant thus does not
constitute appropriation within the meaning of natural resource utilization in the Constitution and the Water Code.
The operation of a typical hydroelectric power plant has been described as follows:
Hydroelectric energy is produced by the force of falling water. The capacity to produce this energy is dependent on both the
available flow and the height from which it falls. Building up behind a high dam, water accumulates potential energy. This is
transformed into mechanical energy when the water rushes down the sluice and strikes the rotary blades of turbine. The
turbine's rotation spins electromagnets which generate current in stationary coils of wire. Finally, the current is put through a
transformer where the voltage is increased for long distance transmission over power lines.66ςrνll
Foreign ownership of a hydropower facility is not prohibited under existing laws. The construction, rehabilitation and
development of hydropower plants are among those infrastructure projects which even wholly-owned foreign corporations
are allowed to undertake under the Amended Build-Operate-Transfer (Amended BOT) Law (R.A. No. 7718).67ςrνll
Beginning 1987, the policy has been openness to foreign investments as evident in the fiscal incentives provided for the
restructuring and privatization of the power industry in the Philippines, under the Power Sector Restructuring Program (PSRP)
of the Asian Development Bank.
The establishment of institutional and legal framework for the entry of private sector in the power industry began with the
issuance by President Corazon C. Aquino of Executive Order No. 215 in 1987. Said order allowed the entry of private sector the
IPPs to participate in the power generation activities in the country. The entry of IPPs was facilitated and made attractive
through the first BOT Law in 1990 (R.A. No. 6957) which aimed to "minimize the burden of infrastructure projects on the
national government budget, minimize external borrowing for infrastructure projects, and use the efficiency of the private
sector in delivering a public good." In 1993, the Electric Power Crisis Act was passed giving the President emergency powers to
urgently address the power crisis in the country.68ςrνll The full implementation of the restructuring and privatization of the
power industry was achieved when Congress passed the EPIRA in 2001.
With respect to foreign investors, the nationality issue had been framed in terms of the character or nature of the power
generation process itself, i.e., whether the activity amounts to utilization of natural resources within the meaning of Sec. 2,
Art. XII of the Constitution. If so, then foreign companies cannot engage in hydropower generation business; but if not, then
government may legally allow even foreign-owned companies to operate hydropower facilities.
The DOJ has consistently regarded hydropower generation by foreign entities as not constitutionally proscribed based on the
definition of water appropriation under the Water Code, thus:
Opinion No. 173, 1984
This refers to your request for opinion on the possibility of granting water permits to foreign corporations authorized to do
business in the Philippines x xx
x xxx
x xx while the Water Code imposes a nationality requirement for the grant of water permits, the same refers to the privilege
"to appropriate and use water." This should be interpreted to mean the extraction of water from its natural source (Art. 9,
P.D. No. 1067). Once removed therefrom, they cease to be a part of the natural resources of the country and are the subject
of ordinary commerce and may be acquired by foreigners (Op. No. 55, series of 1939). x xx in case of a contract of lease, the
water permit shall be secured by the lessor and included in the lease as an improvement. The water so removed from the
natural source may be appropriated/used by the foreign corporation leasing the property.
Opinion No. 14, S. 1995
The nationality requirement imposed by the Water Code refers to the privilege "to appropriate and use water." This, we have
consistently interpreted to mean the extraction of water directly from its natural source. Once removed from its natural
source the water ceases to be a part of the natural resources of the country and may be subject of ordinary commerce and
may even be acquired by foreigners. (Secretary of Justice Op. No. 173, s. 1984; No. 24, s. 1989; No. 100 s. 1994)
In fine, we reiterate our earlier view that a foreign entity may legally process or treat water after its removal from a natural
source by a qualified person, natural or juridical.
Opinion No. 122, s. 1998
The crucial issue at hand is the determination of whether the utilization of water by the power plant to be owned and
operated by a foreign-owned corporation (SRPC) will violate the provisions of the Water Code.
As proposed, the participation of SRPC to the arrangement commences upon construction of the power station, consisting of
a dam and a power plant. After the completion of the said station, its ownership and control shall be turned over to NPC.
However, SRPC shall remain the owner of the power plant and shall operate it for a period of twenty-five (25) years.
It appears that the dam, which will be owned and controlled by NPC, will block the natural flow of the river. The power plant,
which is situated next to it, will entirely depend upon the dam for its water supply which will pass through an intake gate
situated one hundred (100) meters above the riverbed. Due to the distance from the riverbed, water could not enter the
power plant absent the dam that traps the flow of the river. It appears further that no water shall enter the power tunnel
without specific dispatch instructions from NPC, and such supplied water shall be used only by SRPC for power generation and
not for any other purpose. When electricity is generated therein, the same shall be supplied to NPC for distribution to the
public. These facts x xx viewed in relation to the Water Code, specifically Article 9 thereof, x xx clearly show that there is no
circumvention of the law.
This Department has declared that the nationality requirement imposed by the Water Code refers to the privilege "to
appropriate and use water" and has interpreted this phrase to mean the extraction of water directly from its natural source
(Secretary of Justice Opinion No. 14, s. 1995). "Natural" is defined as that which is produced without aid of stop, valves, slides,
or other supplementary means (see Websters New International Dictionary, Second Edition, p. 1630). The water that is used
by the power plant could not enter the intake gate without the dam, which is a man-made structure. Such being the case, the
source of the water that enters the power plant is of artificial character rather than natural. This Department is consistent in
ruling, that once water is removed from its natural source, it ceases to be a part of the natural resources of the country and
may be the subject of ordinary commerce and may even be acquired by foreigners. (Ibid., No. 173, s. 1984; No. 24, s. 1989;
No. 100, s. 1994).
It is also significant to note that NPC, a government-owned and controlled corporation, has the effective control over all
elements of the extraction process, including the amount and timing thereof considering that x xx the water will flow out of
the power tunnel and through the power plant, to be used for the generation of electricity, only when the Downstream Gates
are opened, which occur only upon the specific water release instructions given by NPC to SRPC. This specific feature of the
agreement, taken together with the above-stated analysis of the source of water that enters the plant, support the view that
the nationality requirement embodied in Article XII, Section 2 of the present Constitution and in Article 15 of the Water Code,
is not violated.69ςrνll
(Emphasis supplied.)
The latest executive interpretation is stated in DOJ Opinion No. 52, s. 2005 which was rendered upon the request of PSALM in
connection with the proposed sale structure for the privatization of hydroelectric and geothermal generation assets (Gencos)
of NPC. PSALM sought a ruling on the legality of its proposed privatization scheme whereby the non-power components (dam,
reservoir and appurtenant structures and watershed area) shall be owned by the State through government entities like NPC
or NIA which shall exercise control over the release of water, while the ownership of the power components (power plant and
related facilities) is open to both Filipino citizens/corporations and 100% foreign-owned corporations.
Sustaining the position of PSALM, then Secretary Raul M. Gonzalez opined:
Premised on the condition that only the power components shall be transferred to the foreign bidders while the non-power
components/structures shall be retained by state agencies concerned, we find that both PSALMs proposal and position are
tenable.
x xxx
x xx as ruled in one case by a U.S. court:chanroblesvirtuallawlibrary
Where the State of New York took its natural resources consisting of Saratoga Spring and, through a bottling process, put
those resources into preserved condition where they could be sold to the public in competition with private waters, the state
agencies were not immune from federal taxes imposed upon bottled waters on the theory that state was engaged in the sale
of "natural resources."
Applied to the instant case, and construed in relation to the earlier-mentioned constitutional inhibition, it would appear clear
that while both waters and geothermal steam are, undoubtedly "natural resources", within the meaning of Section 2 Article
XII of the present Constitution, hence, their exploitation, development and utilization should be limited to Filipino citizens or
corporations or associations at least sixty per centum of the capital of which is owned by Filipino citizens, the utilization
thereof can be opened even to foreign nationals, after the same have been extracted from the source by qualified persons or
entities. The rationale is because, since they no longer form part of the natural resources of the country, they become subject
to ordinary commerce.
A contrary interpretation, i.e., that the removed or extracted natural resources would remain inalienable especially to foreign
nationals, can lead to absurd consequences, e.g. that said waters and geothermal steam, and any other extracted natural
resources, cannot be acquired by foreign nationals for sale within or outside the country, which could not have been intended
by the framers of the Constitution.
The fact that under the proposal, the non-power components and structures shall be retained and maintained by the
government entities concerned is, to us, not only a sufficient compliance of constitutional requirement of "full control and
supervision of the State" in the exploitation, development and utilization of natural resources. It is also an enough safeguard
against the evil sought to be avoided by the constitutional reservation x xx.70ςrνll (Italics in the original, emphasis supplied.)
Appropriation of water, as used in the Water Code refers to the "acquisition of rights over the use of waters or the taking or
diverting of waters from a natural source in the manner and for any purpose allowed by law."71ςrνll This definition is not as
broad as the concept of appropriation of water in American jurisprudence:
An appropriation of water flowing on the public domain consists in the capture, impounding, or diversion of it from its natural
course or channel and its actual application to some beneficial use private or personal to the appropriator, to the entire
exclusion (or exclusion to the extent of the water appropriated) of all other persons. x xx72ςrνll
On the other hand, "water right" is defined in the Water Code as the privilege granted by the government to appropriate and
use water.73ςrνll Blacks Law Dictionary defined "water rights" as "a legal right, in the nature of a corporeal hereditament, to
use the water of a natural stream or water furnished through a ditch or canal, for general or specific purposes, such as
irrigation, mining, power, or domestic use, either to its full capacity or to a measured extent or during a defined portion of the
time," or "the right to have the water flow so that some portion of it may be reduced to possession and be made private
property of individual, and it is therefore the right to divert water from natural stream by artificial means and apply the same
to beneficial use."74ςrνll
Under the Water Code concept of appropriation, a foreign company may not be said to be "appropriating" our natural
resources if it utilizes the waters collected in the dam and converts the same into electricity through artificial devices. Since
the NPC remains in control of the operation of the dam by virtue of water rights granted to it, as determined under DOJ
Opinion No. 122, s. 1998, there is no legal impediment to foreign-owned companies undertaking the generation of electric
power using waters already appropriated by NPC, the holder of water permit. Such was the situation of hydropower projects
under the BOT contractual arrangements whereby foreign investors are allowed to finance or undertake construction and
rehabilitation of infrastructure projects and/or own and operate the facility constructed. However, in case the facility requires
a public utility franchise, the facility operator must be a Filipino corporation or at least 60% owned by Filipino.75ςrνll
With the advent of privatization of the electric power industry which resulted in its segregation into four sectors -- generation,
transmission, distribution and supply NPCs generation and transmission functions were unbundled. Power generation and
transmission were treated as separate sectors governed by distinct rules under the new regulatory framework introduced by
EPIRA. The National Transmission Corporation (TRANSCO) was created to own and operate the transmission assets and
perform the transmission functions previously under NPC. While the NPC continues to undertake missionary electrification
programs through the SPUG, PSALM was also created to liquidate the assets and liabilities of NPC.
Under the EPIRA, NPCs generation function was restricted as it was allowed to "generate and sell electricity only from the
undisposed generating assets and IPP contracts of PSALM" and was prohibited from incurring "any new obligations to
purchase power through bilateral contracts with generation companies or other suppliers."76ςrνll PSALM, on the other hand,
was tasked "to structure the sale, privatization or disposition of NPC assets and IPP contracts and/or their energy output
based on such terms and conditions which shall optimize the value and sale prices of said assets."77ςrνll In the case of multi-
purpose hydropower plants, the IRR of R.A. No. 9136 provided that their privatization would extend to water rights which
shall be transferred or assigned to the buyers thereof, subject to safeguards mandated by Sec. 47(e) to enable the national
government to direct water usage in cases of shortage to protect water requirements imbued with public interest.
Accordingly, the Asset Purchase Agreement executed between PSALM and K-Water stipulated:
2.04 Matters Relating to the Non-Power Component
x xxx
Matters relating to Water Rights
NPC has issued a certification (the "Water Certification") wherein NPC consents, subject to Philippine Law, to the (i) transfer of
the Water Permit to the BUYER or its Affiliate, and (ii) use by the BUYER or its Affiliate of the water covered by the Water
Permit from Closing Date up to a maximum period of one (1) year thereafter to enable the BUYER to appropriate and use
water sourced from Angat reservoir for purposes of power generation; provided, that should the consent or approval of any
Governmental Body be required for either (i) or (ii), the BUYER must secure such consent or approval. The BUYER agrees and
shall fully comply with the Water Permit and the Water Certification. x xx
x xxx
Multi-Purpose Facility
The BUYER is fully aware that the Non-Power Components is a multi-purpose hydro-facility and the water is currently being
appropriated for domestic use, municipal use, irrigation and power generation. Anything in this Agreement notwithstanding,
the BUYER shall, at all times even after the Payment Date, fully and faithfully comply with Philippine Law, including the
Instructions, the Rule Curve and Operating Guidelines and the Water Protocol.78ςrνll (Emphasis supplied.)
Lease or transfer of water rights is allowed under the Water Code, subject to the approval of NWRB after due notice and
hearing.79ςrνll However, lessees or transferees of such water rights must comply with the citizenship requirement imposed
by the Water Code and its IRR. But regardless of such qualification of water permit holders/transferees, it is to be noted that
there is no provision in the EPIRA itself authorizing the NPC to assign or transfer its water rights in case of transfer of
operation and possession of multi-purpose hydropower facilities. Since only the power plant is to be sold and privatized, the
operation of the non-power components such as the dam and reservoir, including the maintenance of the surrounding
watershed, should remain under the jurisdiction and control of NPC which continue to be a government corporation. There is
therefore no necessity for NPC to transfer its permit over the water rights to K-Water. Pursuant to its purchase and
operation/management contracts with K-Water, NPC may authorize the latter to use water in the dam to generate electricity.
NPCs water rights remain an integral aspect of its jurisdiction and control over the dam and reservoir. That the EPIRAitselfdid
not ordain any transfer of water rights leads us to infer that Congress intended NPC to continue exercising full supervision
over the dam, reservoir and, more importantly, to remain in complete control of the extraction or diversion of water from the
Angat River. Indeed, there can be no debate that the best means of ensuring that PSALM/NPC can fulfill the duty to prescribe
"safeguards to enable the national government to direct water usage to protect potable water, irrigation, and all other
requirements imbued with public interest" is for it to retain the water rights over those water resources from where the dam
waters are extracted. In this way, the States full supervision and control over the countrys water resources is also assured
notwithstanding the privatized power generation business.
Section 6 (a) of the IRR of R.A. No. 9136 insofar as it directs the transfer of water rights in the privatization of multi-purpose
hydropower facilities, is thus merely directory.
It is worth mentioning that the Water Code explicitly provides that Filipino citizens and juridical persons who may apply for
water permits should be "duly qualified by law to exploit and develop water resources."
Thus, aside from the grant of authority to construct and operate dams and power plants, NPCs Revised Charter specifically
authorized it
(f) To take water from any public stream, river, creek, lake, spring or waterfall in the Philippines, for the purposes specified in
this Act; to intercept and divert the flow of waters from lands of riparian owners and from persons owning or interested in
waters which are or may be necessary for said purposes, upon payment of just compensation therefor; to alter, straighten,
obstruct or increase the flow of water in streams or water channels intersecting or connecting therewith or contiguous to its
works or any part thereof: Provided, That just compensation shall be paid to any person or persons whose property is, directly
or indirectly, adversely affected or damaged thereby.80ςrνll
The MWSS is likewise vested with the power to construct, maintain and operate dams and reservoirs for the purpose of
supplying water for domestic and other purposes, as well to construct, develop, maintain and operate such artesian wells and
springs as may be needed in its operation within its territory.81ςrνll On the other hand, NIA, also a water permit holder in
Angat River, is vested with similar authority to utilize water resources, as follows:
(b) To investigate all available and possible water resources in the country for the purpose of utilizing the same for irrigation,
and to plan, design and construct the necessary projects to make the ten to twenty-year period following the approval of this
Act as the Irrigation Age of the Republic of the Philippines;82ςrνll
(c) To construct multiple-purpose water resources projects designed primarily for irrigation, and secondarily for hydraulic
power development and/or other uses such as flood control, drainage, land reclamation, domestic water supply, roads and
highway construction and reforestation, among others, provided, that the plans, designs and the construction thereof, shall
be undertaken in coordination with the agencies concerned;83ςrνll
To reiterate, there is nothing in the EPIRAwhich declares that it is mandatory for PSALM or NPC to transfer or assign NPCs
water rights to buyers of its multi-purpose hydropower facilities as part of the privatization process. While PSALM was
mandated to transfer the ownership of all hydropower plants except those mentioned in Sec. 47 (f), any transfer of
possession, operation and control of the multi-purpose hydropower facilities, the intent to preserve water resources under
the full supervision and control of the State is evident when PSALM was obligated to prescribe safeguards to enable the
national government to direct water usage to domestic and other requirements "imbued with public interest." There is no
express requirement for the transfer of water rights in all cases where the operation of hydropower facilities in a multi-
purpose dam complex is turned over to the private sector.
As the new owner of the AHEPP, K-Water will have to utilize the waters in the Angat Dam for hydropower generation.
Consistent with the goals of the EPIRA, private entities are allowed to undertake power generation activities and acquire NPCs
generation assets. But since only the hydroelectric power plants and appurtenances are being sold, the privatization scheme
should enable the buyer of a hydroelectric power plant in NPCs multi-purpose dam complex to have beneficialuse of the
waters diverted or collected in the Angat Dam for its hydropower generation activities, and at the same time ensure that the
NPC retains full supervision and control over the extraction and diversion of waters from the Angat River.
In fine, the Court rules that while the sale of AHEPP to a foreign corporation pursuant to the privatization mandated by the
EPIRA did not violate Sec. 2, Art. XII of the 1987 Constitution which limits the exploration, development and utilization of
natural resources under the full supervision and control of the State or the States undertaking the same through joint venture,
co-production or production sharing agreements with Filipino corporations 60% of the capital of which is owned by Filipino
citizens, the stipulation in the Asset Purchase Agreement and Operations and Maintenance Agreement whereby NPC consents
to the transfer of water rights to the foreign buyer, K-Water, contravenes the aforesaid constitutional provision and the Water
Code.
Section 6, Rule 23 of the IRR of EPIRA, insofar as it ordered NPCs water rights in multi-purpose hydropower facilities to be
included in the sale thereof, is declared as merely directoryand not an absolute condition in the privatization scheme. In this
case, we hold that NPC shall continue to be the holder of the water permit even as the operational control and day-to-day
management of the AHEPP is turned over to K-Water under the terms and conditions of their APA and O & M Agreement,
whereby NPC grants authority to K-Water to utilize the waters diverted or collected in the Angat Dam for hydropower
generation. Further, NPC and K-Water shall faithfully comply with the terms and conditions of the Memorandum of
Agreement on Water Protocol, as well as with such other regulations and issuances of the NWRB governing water rights and
water usage.
WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s isPARTLY GRANTED.
The following DISPOSITIONS are in ORDER:
1) The bidding conducted and the Notice of Award issued by PSALM in favor of the winning bidder, KOREA WATER RESOURCES
CORPORATION (K-WATER), are declaredVALID and LEGAL;
2) PSALM is directed to FURNISH the petitioners with copies of all documents and records in its files pertaining to K-Water;
3) Section 6 (a), Rule 23, IRR of the EPIRA, is hereby declared as merely DIRECTORY, and not an absolute condition in all cases
where NPC-owned hydropower generation facilities are privatized;
4) NPC shall CONTINUE to be the HOLDER of Water Permit No. 6512 issued by the National Water Resources Board. NPC shall
authorize K-Water to utilize the waters in the Angat Dam for hydropower generation, subject to the NWRBs rules and
regulations governing water right and usage. The Asset Purchase Agreement and Operation & Management Agreement
between NPC/PSALM and K- Water are thus amended accordingly.
Except for the requirement of securing a water permit, K-Water remains BOUND by its undertakings and warranties under the
APA and O & M Agreement;
5) NPC shall be a CO-PARTY with K-Water in the Water Protocol Agreement with MWSS and NIA, and not merely as a
conforming authority or agency; and
6) The Status Quo Ante Order issued by this Court on May 24, 2010 is hereby LIFTED and SET ASIDE.
No pronouncement as to costs.ςrαlαωlιbrαr
SO ORDERED.
FIRST DIVISION
G.R. No. 157943, September 04, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GILBERT REYES WAGAS, Accused-Appellant.

DECISION
BERSAMIN, J.:

The Bill of Rights guarantees the right of an accused to be presumed innocent until the contrary is proved. In order to
overcome the presumption of innocence, the Prosecution is required to adduce against him nothing less than proof beyond
reasonable doubt. Such proof is not only in relation to the elements of the offense, but also in relation to the identity of the
offender. If the Prosecution fails to discharge its heavy burden, then it is not only the right of the accused to be freed, it
becomes the Court’s constitutional duty to acquit him.
The Case

Gilbert R. Wagas appeals his conviction for estafa under the decision rendered on July 11, 2002 by the Regional Trial Court,
Branch 58, in Cebu City (RTC), meting on him the indeterminate penalty of 12 years of prision mayor, as minimum, to 30 years
of reclusion perpetua, as maximum.
Antecedents

Wagas was charged with estafa under the information that reads:nadcralaw
That on or about the 30th day of April, 1997, and for sometime prior and subsequent thereto, in the City of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, with intent to gain and by means
of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, to wit: knowing
that he did not have sufficient funds deposited with the Bank of Philippine Islands, and without informing Alberto Ligaray of
that circumstance, with intent to defraud the latter, did then and there issue Bank of the Philippine Islands Check No.
0011003, dated May 08, 1997 in the amount of P200,000.00, which check was issued in payment of an obligation, but which
check when presented for encashment with the bank, was dishonored for the reason “drawn against insufficient funds” and
inspite of notice and several demands made upon said accused to make good said check or replace the same with cash, he
had failed and refused and up to the present time still fails and refuses to do so, to the damage and prejudice of Alberto
Ligaray in the amount aforestated.

CONTRARY TO LAW.1
After Wagas entered a plea of not guilty,2 the pre-trial was held, during which the Defense admitted that the check alleged in
the information had been dishonored due to insufficient funds.3 On its part, the Prosecution made no admission.4cralawlibrary

At the trial, the Prosecution presented complainant Alberto Ligaray as its lone witness. Ligaray testified that on April 30, 1997,
Wagas placed an order for 200 bags of rice over the telephone; that he and his wife would not agree at first to the proposed
payment of the order by postdated check, but because of Wagas’ assurance that he would not disappoint them and that he
had the means to pay them because he had a lending business and money in the bank, they relented and accepted the order;
that he released the goods to Wagas on April 30, 1997 and at the same time received Bank of the Philippine Islands (BPI)
Check No. 0011003 for P200,000.00 payable to cash and postdated May 8, 1997; that he later deposited the check with Solid
Bank, his depository bank, but the check was dishonored due to insufficiency of funds;5 that he called Wagas about the
matter, and the latter told him that he would pay upon his return to Cebu; and that despite repeated demands, Wagas did not
pay him.6cralawlibrary

On cross-examination, Ligaray admitted that he did not personally meet Wagas because they transacted through telephone
only; that he released the 200 bags of rice directly to Robert Cañada, the brother-in-law of Wagas, who signed the delivery
receipt upon receiving the rice.7cralawlibrary

After Ligaray testified, the Prosecution formally offered the following: (a) BPI Check No. 0011003 in the amount of
P200,000.00 payable to “cash;” (b) the return slip dated May 13, 1997 issued by Solid Bank; (c) Ligaray’s affidavit; and (d) the
delivery receipt signed by Cañada. After the RTC admitted the exhibits, the Prosecution then rested its case.8cralawlibrary

In his defense, Wagas himself testified. He admitted having issued BPI Check No. 0011003 to Cañada, his brother-in-law, not
to Ligaray. He denied having any telephone conversation or any dealings with Ligaray. He explained that the check was
intended as payment for a portion of Cañada’s property that he wanted to buy, but when the sale did not push through, he
did not anymore fund the check.9cralawlibrary

On cross-examination, the Prosecution confronted Wagas with a letter dated July 3, 1997 apparently signed by him and
addressed to Ligaray’s counsel, wherein he admitted owing Ligaray P200,000.00 for goods received, to wit:nadcralaw
This is to acknowledge receipt of your letter dated June 23, 1997 which is self-explanatory. It is worthy also to discuss with you
the environmental facts of the case for your consideration, to wit:nadcralaw
1. It is true that I obtained goods from your client worth P200,000.00 and I promised to settle the same last May 10,
1997, but to no avail. On this point, let me inform you that I sold my real property to a buyer in Manila, and promised
to pay the consideration on the same date as I promised with your client. Unfortunately, said buyer likewise failed to
make good with such obligation. Hence, I failed to fulfill my promise resultant thereof. (sic)
 2. Again, I made another promise to settle said obligation on or before June 15, 1997, but still to no avail attributable to
the same reason as aforementioned. (sic)
3. To arrest this problem, we decided to source some funds using the subject property as collateral. This other means is
resorted to for the purpose of settling the herein obligation. And as to its status, said funds will be rele[a]sed within
thirty (30) days from today.
In view of the foregoing, it is my sincere request and promise to settle said obligation on or before August 15, 1997.

Lastly, I would like to manifest that it is not my intention to shy away from any financial obligation.

xxxx

Respectfully yours,

(SGD.)

GILBERT R. WAGAS10
Wagas admitted the letter, but insisted that it was Cañada who had transacted with Ligaray, and that he had signed the letter
only because his sister and her husband (Cañada) had begged him to assume the responsibility.11 On redirect examination,
Wagas declared that Cañada, a seafarer, was then out of the country; that he signed the letter only to accommodate the pleas
of his sister and Cañada, and to avoid jeopardizing Cañada’s application for overseas employment.12 The Prosecution
subsequently offered and the RTC admitted the letter as rebuttal evidence.13cralawlibrary
Decision of the RTC

As stated, the RTC convicted Wagas of estafa on July 11, 2002, viz:nadcralaw
WHEREFORE, premises considered, the Court finds the accused GUILTY beyond reasonable doubt as charged and he is hereby
sentenced as follows:nadcralaw
1. To suffer an indeterminate penalty of from twelve (12) years of pris[i]on mayor, as minimum, to thirty (30) years
of reclusion perpetua as maximum;
2. To indemnify the complainant, Albert[o] Ligaray in the sum of P200,000.00;
3. To pay said complainant the sum of P30,000.00 by way of attorney’s fees; and
4. the costs of suit.
SO ORDERED.14
The RTC held that the Prosecution had proved beyond reasonable doubt all the elements constituting the crime of estafa,
namely: (a) that Wagas issued the postdated check as payment for an obligation contracted at the time the check was issued;
(b) that he failed to deposit an amount sufficient to cover the check despite having been informed that the check had been
dishonored; and (c) that Ligaray released the goods upon receipt of the postdated check and upon Wagas’ assurance that the
check would be funded on its date.

Wagas filed a motion for new trial and/or reconsideration,15 arguing that the Prosecution did not establish that it was he who
had transacted with Ligaray and who had negotiated the check to the latter; that the records showed that Ligaray did not
meet him at any time; and that Ligaray’s testimony on their alleged telephone conversation was not reliable because it was
not shown that Ligaray had been familiar with his voice. Wagas also sought the reopening of the case based on newly
discovered evidence, specifically: (a) the testimony of Cañada who could not testify during the trial because he was then out
of the country, and (b) Ligaray’s testimony given against Wagas in another criminal case for violation of Batas Pambansa
Blg. 22.

On October 21, 2002, the RTC denied the motion for new trial and/or reconsideration, opining that the evidence Wagas
desired to present at a new trial did not qualify as newly discovered, and that there was no compelling ground to reverse its
decision.16cralawlibrary

Wagas appealed directly to this Court by notice of appeal.17cralawlibrary

Prior to the elevation of the records to the Court, Wagas filed a petition for admission to bail pending appeal. The RTC granted
the petition and fixed Wagas’ bond at P40,000.00.18 Wagas then posted bail for his provisional liberty pending
appeal.19cralawlibrary

The resolution of this appeal was delayed by incidents bearing on the grant of Wagas’ application for bail. On November 17,
2003, the Court required the RTC Judge to explain why Wagas was out on bail.20 On January 15, 2004, the RTC Judge
submitted to the Court a so-called manifestation and compliance which the Court referred to the Office of the Court
Administrator (OCA) for evaluation, report, and recommendation.21 On July 5, 2005, the Court, upon the OCA’s
recommendation, directed the filing of an administrative complaint for simple ignorance of the law against the RTC
Judge.22 On September 12, 2006, the Court directed the OCA to comply with its July 5, 2005 directive, and to cause the filing of
the administrative complaint against the RTC Judge. The Court also directed Wagas to explain why his bail should not be
cancelled for having been erroneously granted.23 Finally, in its memorandum dated September 27, 2006, the OCA manifested
to the Court that it had meanwhile filed the administrative complaint against the RTC Judge.24cralawlibrary
Issues
In this appeal, Wagas insists that he and Ligaray were neither friends nor personally known to one other; that it was highly
incredible that Ligaray, a businessman, would have entered into a transaction with him involving a huge amount of money
only over the telephone; that on the contrary, the evidence pointed to Cañada as the person with whom Ligaray had
transacted, considering that the delivery receipt, which had been signed by Cañada, indicated that the goods had been
“Ordered by ROBERT CAÑADA,” that the goods had been received by Cañada in good order and condition, and that there was
no showing that Cañada had been acting on behalf of Wagas; that he had issued the check to Cañada upon a different
transaction; that Cañada had negotiated the check to Ligaray; and that the element of deceit had not been established
because it had not been proved with certainty that it was him who had transacted with Ligaray over the telephone.

The circumstances beg the question: did the Prosecution establish beyond reasonable doubt the existence of all the elements
of the crime of estafa as charged, as well as the identity of the perpetrator of the crime?
Ruling

The appeal is meritorious.

Article 315, paragraph 2(d) of the Revised Penal Code, as amended, provides:nadcralaw
Article 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be
punished by:nadcralaw

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud:nadcralaw

xxxx

(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to
deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee
or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act.
In order to constitute estafa under this statutory provision, the act of postdating or issuing a check in payment of an obligation
must be the efficient cause of the defraudation. This means that the offender must be able to obtain money or property from
the offended party by reason of the issuance of the check, whether dated or postdated. In other words, the Prosecution must
show that the person to whom the check was delivered would not have parted with his money or property were it not for the
issuance of the check by the offender.25cralawlibrary

The essential elements of the crime charged are that: (a) a check is postdated or issued in payment of an obligation
contracted at the time the check is issued; (b) lack or insufficiency of funds to cover the check; and (c) damage to the payee
thereof.26 It is the criminal fraud or deceit in the issuance of a check that is punishable, not the non-payment of a debt.27Prima
facie evidence of deceit exists by law upon proof that the drawer of the check failed to deposit the amount necessary to cover
his check within three days from receipt of the notice of dishonor.

The Prosecution established that Ligaray had released the goods to Cañada because of the postdated check the latter had
given to him; and that the check was dishonored when presented for payment because of the insufficiency of funds.

In every criminal prosecution, however, the identity of the offender, like the crime itself, must be established by proof beyond
reasonable doubt.28 In that regard, the Prosecution did not establish beyond reasonable doubt that it was Wagas who had
defrauded Ligaray by issuing the check.

Firstly, Ligaray expressly admitted that he did not personally meet the person with whom he was transacting over the
telephone, thus:
Q: On April 30, 1997, do you remember having a transaction with the accused in this
case?

A: Yes, sir. He purchased two hundred bags of rice from me.

Q: How did this purchase of rice transaction started? (sic)

A: He talked with me over the phone and told me that he would like to purchase
two hundred bags of rice and he will just issue a check.29
Even after the dishonor of the check, Ligaray did not personally see and meet whoever he had dealt with and to whom he had
made the demand for payment, and that he had talked with him only over the telephone, to wit:nadcralaw
Q: After the check was (sic) bounced, what did you do next?

A: I made a demand on them.

Q: How did you make a demand?

A: I called him over the phone.

Q: Who is that “him” that you are referring to?

A: Gilbert Wagas.30
Secondly, the check delivered to Ligaray was made payable to cash. Under the Negotiable Instruments Law, this type of check
was payable to the bearer and could be negotiated by mere delivery without the need of an indorsement.31 This rendered it
highly probable that Wagas had issued the check not to Ligaray, but to somebody else like Cañada, his brother-in-law, who
then negotiated it to Ligaray. Relevantly, Ligaray confirmed that he did not himself see or meet Wagas at the time of the
transaction and thereafter, and expressly stated that the person who signed for and received the stocks of rice was Cañada.

It bears stressing that the accused, to be guilty of estafa as charged, must have used the check in order to defraud the
complainant. What the law punishes is the fraud or deceit, not the mere issuance of the worthless check. Wagas could not be
held guilty of estafa simply because he had issued the check used to defraud Ligaray. The proof of guilt must still clearly show
that it had been Wagas as the drawer who had defrauded Ligaray by means of the check.

Thirdly, Ligaray admitted that it was Cañada who received the rice from him and who delivered the check to him. Considering
that the records are bereft of any showing that Cañada was then acting on behalf of Wagas, the RTC had no factual and legal
bases to conclude and find that Cañada had been acting for Wagas. This lack of factual and legal bases for the RTC to infer so
obtained despite Wagas being Cañada’s brother-in-law.

Finally, Ligaray’s declaration that it was Wagas who had transacted with him over the telephone was not reliable because he
did not explain how he determined that the person with whom he had the telephone conversation was really Wagas whom he
had not yet met or known before then. We deem it essential for purposes of reliability and trustworthiness that a telephone
conversation like that one Ligaray supposedly had with the buyer of rice to be first authenticated before it could be received
in evidence. Among others, the person with whom the witness conversed by telephone should be first satisfactorily identified
by voice recognition or any other means.32 Without the authentication, incriminating another person just by adverting to the
telephone conversation with him would be all too easy. In this respect, an identification based on familiarity with the voice of
the caller, or because of clearly recognizable peculiarities of the caller would have sufficed.33 The identity of the caller could
also be established by the caller’s self-identification, coupled with additional evidence, like the context and timing of the
telephone call, the contents of the statement challenged, internal patterns, and other distinctive characteristics, and
disclosure of knowledge of facts known peculiarly to the caller.34cralawlibrary

Verily, it is only fair that the caller be reliably identified first before a telephone communication is accorded probative weight.
The identity of the caller may be established by direct or circumstantial evidence. According to one ruling of the Kansas
Supreme Court:nadcralaw
Communications by telephone are admissible in evidence where they are relevant to the fact or facts in issue, and
admissibility is governed by the same rules of evidence concerning face-to-face conversations except the party against whom
the conversations are sought to be used must ordinarily be identified. It is not necessary that the witness be able, at the time
of the conversation, to identify the person with whom the conversation was had, provided subsequent identification is proved
by direct or circumstantial evidence somewhere in the development of the case. The mere statement of his identity by the
party calling is not in itself sufficient proof of such identity, in the absence of corroborating circumstances so as to render
the conversation admissible. However, circumstances preceding or following the conversation may serve to sufficiently
identify the caller. The completeness of the identification goes to the weight of the evidence rather than its admissibility,
and the responsibility lies in the first instance with the district court to determine within its sound discretion whether the
threshold of admissibility has been met.35 (Bold emphasis supplied)
Yet, the Prosecution did not tender any plausible explanation or offer any proof to definitely establish that it had been Wagas
whom Ligaray had conversed with on the telephone. The Prosecution did not show through Ligaray during the trial as to how
he had determined that his caller was Wagas. All that the Prosecution sought to elicit from him was whether he had known
and why he had known Wagas, and he answered as follows:nadcralaw
Q: Do you know the accused in this case?

A: Yes, sir.

Q: If he is present inside the courtroom […]

A: No, sir. He is not around.

Q: Why do you know him?

A: I know him as a resident of Compostela because he is an ex-mayor of

Compostela.36
During cross-examination, Ligaray was allowed another opportunity to show how he had determined that his caller was
Wagas, but he still failed to provide a satisfactory showing, to wit:nadcralaw
Q: Mr. Witness, you mentioned that you and the accused entered into [a] transaction
 of rice selling, particularly with these 200 sacks of rice subject of this case, through
telephone conversation?

A: Yes, sir.

Q: But you cannot really ascertain that it was the accused whom you are talking
with?

A: I know it was him because I know him.

Q: Am I right to say [that] that was the first time that you had a transaction with the
accused through telephone conversation, and as a consequence of that alleged
conversation with the accused through telephone he issued a check in your favor?
A: No. Before that call I had a talk[ ] with the accused.

Q: But still through the telephone?

A: Yes, sir.

Q: There was no instant (sic) that the accused went to see you personally regarding
the 200 bags rice transaction?

A: No. It was through telephone only.

Q: In fact[,] you did not cause the delivery of these 200 bags of rice through the
accused himself?

A: Yes. It was through Robert.

Q: So, after that phone call[,] you deliver[ed] th[ose] 200 sacks of rice through
somebody other than the accused?

A: Yes, sir.37
Ligaray’s statement that he could tell that it was Wagas who had ordered the rice because he “know[s]” him was still vague
and unreliable for not assuring the certainty of the identification, and should not support a finding of Ligaray’s familiarity with
Wagas as the caller by his voice. It was evident from Ligaray’s answers that Wagas was not even an acquaintance of Ligaray’s
prior to the transaction. Thus, the RTC’s conclusion that Ligaray had transacted with Wagas had no factual basis. Without that
factual basis, the RTC was speculating on a matter as decisive as the identification of the buyer to be Wagas.

The letter of Wagas did not competently establish that he was the person who had conversed with Ligaray by telephone to
place the order for the rice. The letter was admitted exclusively as the State’s rebuttal evidence to controvert or impeach the
denial of Wagas of entering into any transaction with Ligaray on the rice; hence, it could be considered and appreciated only
for that purpose. Under the law of evidence, the court shall consider evidence solely for the purpose for which it is
offered,38 not for any other purpose.39 Fairness to the adverse party demands such exclusivity. Moreover, the high plausibility
of the explanation of Wagas that he had signed the letter only because his sister and her husband had pleaded with him to do
so could not be taken for granted.

It is a fundamental rule in criminal procedure that the State carries the onus probandi in establishing the guilt of the accused
beyond a reasonable doubt, as a consequence of the tenet ei incumbit probation, qui dicit, non qui negat, which means that
he who asserts, not he who denies, must prove,40 and as a means of respecting the presumption of innocence in favor of the
man or woman on the dock for a crime. Accordingly, the State has the burden of proof to show: (1) the correct identification
of the author of a crime, and (2) the actuality of the commission of the offense with the participation of the accused. All these
facts must be proved by the State beyond reasonable doubt on the strength of its evidence and without solace from the
weakness of the defense. That the defense the accused puts up may be weak is inconsequential if, in the first place, the State
has failed to discharge the onus of his identity and culpability. The presumption of innocence dictates that it is for the
Prosecution to demonstrate the guilt and not for the accused to establish innocence.41 Indeed, the accused, being presumed
innocent, carries no burden of proof on his or her shoulders. For this reason, the first duty of the Prosecution is not to prove
the crime but to prove the identity of the criminal. For even if the commission of the crime can be established, without
competent proof of the identity of the accused beyond reasonable doubt, there can be no conviction.42cralawlibrary

There is no question that an identification that does not preclude a reasonable possibility of mistake cannot be accorded any
evidentiary force.43 Thus, considering that the circumstances of the identification of Wagas as the person who transacted on
the rice did not preclude a reasonable possibility of mistake, the proof of guilt did not measure up to the standard of proof
beyond reasonable doubt demanded in criminal cases. Perforce, the accused’s constitutional right of presumption of
innocence until the contrary is proved is not overcome, and he is entitled to an acquittal,44 even though his innocence may be
doubted.45cralawlibrary
Nevertheless, an accused, though acquitted of estafa, may still be held civilly liable where the preponderance of the
established facts so warrants.46 Wagas as the admitted drawer of the check was legally liable to pay the amount of it to
Ligaray, a holder in due course.47 Consequently, we pronounce and hold him fully liable to pay the amount of the dishonored
check, plus legal interest of 6% per annum from the finality of this decision.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision rendered on July 11, 2002 by the Regional Trial Court, Branch
58, in Cebu City; and ACQUITS Gilbert R. Wagas of the crime of estafaon the ground of reasonable doubt, but ORDERS him to
pay Alberto Ligaray the amount of P200,000.00 as actual damages, plus interest of 6% per annum from the finality of this
decision.

No pronouncement on costs of suit.

SO ORDERED
THIRD DIVISION
G.R. No. 185527 July 18, 2012
HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET AL., Respondents.
DECISION
PERLAS-BERNABE, J.:
The procedure for taking depositions in criminal cases recognizes the prosecution's right to preserve testimonial evidence and
prove its case despite the unavailability of its witness. It cannot, however, give license to prosecutorial indifference or
unseemly involvement in a prosecution witness' absence from trial. To rule otherwise would effectively deprive the accused of
his fundamental right to be confronted with the witnesses against him.
In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioners seek to nullify and set aside
the February 19, 2008 Decision1 and November 28, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 99383,
which reversed the September 12, 2006 Order3 issued by the Regional Trial Court (RTC) of Manila, Branch 27 in Civil Case No.
06-114844 and upheld the grant of the prosecution’s motion to take the testimony of a witness by oral depositions in Laos,
Cambodia.
Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the Metropolitan Trial Court (MeTC) of Manila
for Other Deceits under Article 318 of the Revised Penal Code (RPC) docketed as Criminal Case No. 396447. The
Information4 dated September 24, 2003, later amended5 on September 14, 2004, reads:
"That sometime in August 1996, in the City of Manila, Philippines, the said accused, conspiring, confederating together and
helping one another, did then and there willfully, unlawfully and feloniously defraud Highdone Company Ltd. Represented by
Li Luen Ping, in the following manner, to wit: all said accused, by means of false manifestations and fraudulent representations
which they made to said Li Luen Ping to the effect that they have chattels such as machinery, spare parts, equipment and raw
materials installed and fixed in the premises of BGB Industrial Textile Mills Factory located in the Bataan Export Processing
Zone (BEPZ) in Mariveles, Bataan, executed a Deed of Mortgage for a consideration of the amount of $464,266.90 or its peso
equivalent at P20,892,010.50 more or less in favor of ML Resources and Highdone Company Ltd. Representing that the said
deed is a FIRST MORTGAGE when in truth and in fact the accused well knew that the same had been previously encumbered,
mortgaged and foreclosed by CHINA BANK CORPORATION as early as September 1994 thereby causing damage and prejudice
to said HIGHDONE COMPANY LTD., in the said amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less."
Upon arraignment, petitioners pleaded not guilty to the charge.
The prosecution's complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia, traveled from his home
country back to the Philippines in order to attend the hearing held on September 9, 2004. However, trial dates were
subsequently postponed due to his unavailability.
On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral Deposition6 of Li Luen Ping, alleging
that he was being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor's
advice, he could not make the long travel to the Philippines by reason of ill health.
Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion after the prosecution complied with the directive to
submit a Medical Certificate of Li Luen Ping. Petitioners sought its reconsideration which the MeTC denied,9 prompting
petitioners to file a Petition for Certiorari10 before the RTC.
On September 12, 2006, the RTC granted the petition and declared the MeTC Orders null and void.11 The RTC held that Section
17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply suppletorily to the case since there is a specific
provision in the Rules of Court with respect to the taking of depositions of prosecution witnesses in criminal cases, which is
primarily intended to safeguard the constitutional rights of the accused to meet the witness against him face to face.
Upon denial by the RTC of their motion for reconsideration through an Order dated March 5, 2006,12 the prosecution elevated
the case to the CA.
On February 19, 2008, the CA promulgated the assailed Decision which held that no grave abuse of discretion can be imputed
upon the MeTC for allowing the deposition-taking of the complaining witness Li Luen Ping because no rule of procedure
expressly disallows the taking of depositions in criminal cases and that, in any case, petitioners would still have every
opportunity to cross-examine the complaining witness and make timely objections during the taking of the oral deposition
either through counsel or through the consular officer who would be taking the deposition of the witness.
On November 28, 2008, the CA denied petitioners' motion for reconsideration. Hence, this petition alleging that –
I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE METROPOLITAN TRIAL COURT INFRINGED THE CONSTITUTIONAL
RIGHT OF THE PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE TAKING OF THE DEPOSITION OF THE COMPLAINING
WITNESS IN LAOS, CAMBODIA.
II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION TAKING OF THE COMPLAINING WITNESS IN LAOS,
CAMBODIA IS AN INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO CONFRONT THE SAID WITNESS
FACE TO FACE.
III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL LEGISLATION COMMITTED BY THE METROPOLITAN TRIAL
COURT IN APPLYING THE RULES ON DEPOSITION-TAKING IN CIVIL CASES TO CRIMINAL CASES.
IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL DEFINITION OF GRAVE ABUSE OF DISCRETION,
OVERLOOKING THE ESTABLISHED RULE THAT VIOLATION OF THE CONSTITUTION, THE LAW OR JURISPRUDENCE SIMILARLY
COMES WITHIN THE PURVIEW OF GRAVE ABUSE OF DISCRETION.
We rule in favor of petitioners.
The Procedure for Testimonial Examination of an Unavailable Prosecution Witness is Covered Under Section 15, Rule 119.
The examination of witnesses must be done orally before a judge in open court.13 This is true especially in criminal cases
where the Constitution secures to the accused his right to a public trial and to meet the witnessess against him face to face.
The requirement is the "safest and most satisfactory method of investigating facts" as it enables the judge to test the witness'
credibility through his manner and deportment while testifying.14 It is not without exceptions, however, as the Rules of Court
recognizes the conditional examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct
court testimony.
Even in criminal proceedings, there is no doubt as to the availability of conditional examination of witnesses – both for the
benefit of the defense, as well as the prosecution. The Court's ruling in the case of Vda. de Manguerra v. Risos15 explicitly
states that –
"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to
by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In
criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took effect on
December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses." (Underscoring
supplied)16
The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either upon oral
examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time
or place within the Philippines; or before any
Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with
no additional requirement except reasonable notice in writing to the other party.17
But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably
be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the
case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure. The
pertinent provision reads thus:
SEC. 15. Examination of witness for the prosecution. – When it satisfactorily appears that a witness for the prosecution is too
sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning,
he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of
the accused, or in his absence after reasonable notice to attend the examination has been served on him shall be conducted in
the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall
be considered a waiver. The statement taken may be admitted in behalf of or against the accused.
Since the conditional examination of a prosecution witness must take place at no other place than the court where the case is
pending, the RTC properly nullified the MeTC's orders granting the motion to take the deposition of Li Luen Ping before the
Philippine consular official in Laos, Cambodia. We quote with approval the RTC's ratiocination in this wise:
The condition of the private complainant being sick and of advanced age falls within the provision of Section 15 Rule 119 of
the Rules of Court. However, said rule substantially provides that he should be conditionally examined before the court where
the case is pending. Thus, this Court concludes that the language of Section 15 Rule 119 must be interpreted to require the
parties to present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the
judge presiding at the hearing, rather than by means of deposition. No where in the said rule permits the taking of deposition
outside the Philippines whether the deponent is sick or not.18 (Underscoring supplied)
Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is
pending would not only deprive a detained accused of his right to attend the proceedings but also deprive the trial judge of
the opportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially
intolerable when the witness' testimony is crucial to the prosecution's case against the accused. This is the import of the
Court's ruling in Vda. de Manguerra19 where we further declared that –
While we recognize the prosecution's right to preserve the testimony of its witness in order to prove its case, we cannot
disregard the rules which are designed mainly for the protection of the accused's constitutional rights. The giving of testimony
during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such,
calls for a strict construction of the rules.20 (Underscoring supplied)
It is argued that since the Rules of Civil Procedure is made explicitly applicable in all cases, both civil and criminal as well as
special proceedings, the deposition-taking before a Philippine consular official under Rule 23 should be deemed allowable also
under the circumstances.
However, the suggested suppletory application of Rule 23 in the testimonial examination of an unavailable prosecution
witness has been categorically ruled out by the Court in the same case of Vda. de Manguerra, as follows:
It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or
criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal
cases. However, it is likewise true that criminal proceedings are primarily governed by the Revised Rules of Criminal
Procedure.
Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply
Rule 23 suppletorily or otherwise." (Underscoring supplied)
The Conditional Examination of a Prosecution Witness Cannot Defeat the Rights of the Accused to Public Trial and
Confrontation of Witnesses
The CA took a simplistic view on the use of depositions in criminal cases and overlooked fundamental considerations no less
than the Constitution secures to the accused, i.e., the right to a public trial and the right to confrontation of witnesses. Section
14(2), Article III of the
Constitution provides as follows:
Section 14. (1) x x x
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right
to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy,
impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring
supplied)
In dismissing petitioners' apprehensions concerning the deprivation of their constitutional rights to a public trial and
confrontation, the CA opined that petitioners would still be accorded the right to cross-examine the deponent witness and
raise their objections during the deposition-taking in the same manner as in a regular court trial.
We disagree. There is a great deal of difference between the face-to- face confrontation in a public criminal trial in the
presence of the presiding judge and the cross-examination of a witness in a foreign place outside the courtroom in the
absence of a trial judge. In the aptly cited case of People v. Estenzo,21 the Court noted the uniqueness and significance of a
witness testifying in open court, thus:
"The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party
the opportunity of cross-examination. "The opponent", according to an eminent authority, "demands confrontation, not for
the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross examination which
cannot be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the
advantage of the witness before the judge, and it is this – it enables the judge as trier of facts "to obtain the elusive and
incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon
the witness. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and
expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness
will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his
character. These can only be observed by the judge if the witness testifies orally in court. x x x"22 (Underscoring
supplied)1âwphi1
The right of confrontation, on the other hand, is held to apply specifically to criminal proceedings and to have a twofold
purpose: (1) to afford the accused an opportunity to test the testimony of witnesses by cross-examination, and (2) to allow
the judge to observe the deportment of witnesses.23 The Court explained in People v. Seneris24that the constitutional
requirement "insures that the witness will give his testimony under oath, thus deterring lying by the threat of perjury charge;
it forces the witness to submit to cross-examination, a valuable instrument in exposing falsehood and bringing out the truth;
and it enables the court to observe the demeanor of the witness and assess his credibility."25
As the right of confrontation is intended "to secure the accused in the right to be tried as far as facts provable by witnesses as
meet him face to face at the trial who give their testimony in his presence, and give to the accused an opportunity of cross-
examination,"26 it is properly viewed as a guarantee against the use of unreliable testimony in criminal trials. In the American
case of Crawford v. Washington,27 the US Supreme Court had expounded on the procedural intent of the confrontation
requirement, thus:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's right to
confront witness face to face protection to the vagaries of the rules of evidence, much less to amorphous notions of
"reliability". Certainly, none of the authorities discussed above acknowledges any general reliability exception to the common-
law rule.
Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the
Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It
commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of
cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which
there could be little dissent), but about how reliability can best be determined." (Underscoring supplied)
The Webb Ruling is Not on All Fours with the Instant Case
The CA found the frail and infirm condition of the prosecution witness as sufficient and compelling reason to uphold the MeTC
Orders granting the deposition-taking, following the ruling in the case of People v. Webb28 that the taking of an unavailable
witness' deposition is in the nature of a discovery procedure the use of which is within the trial court's sound discretion which
needs only to be exercised in a reasonable manner and in consonance with the spirit of the law.29
But the ruling in the cited case is not instantly applicable herein as the factual settings are not similar.1âwphi1 The accused in
the Webb case had sought to take the oral deposition of five defense witnesses before a Philippine consular agent in lieu of
presenting them as live witnesses, alleging that they were all residents of the United States who could not be compelled by
subpoena to testify in court. The trial court denied the motion of the accused but the CA differed and ordered the deposition
taken. When the matter was raised before this Court, we sustained the trial court's disallowance of the deposition-taking on
the limited ground that there was no necessity for the procedure as the matter sought to be proved by way of deposition was
considered merely corroborative of the evidence for the defense.30
In this case, where it is the prosecution that seeks to depose the complaining witness against the accused, the stringent
procedure under Section 15, Rule 119 cannot be ignored without violating the constitutional rights of the accused to due
process.
Finally, the Court takes note that prosecution witness Li Luen Ping had managed to attend the initial trial proceedings before
the MeTC of Manila on September 9, 2004. At that time, Li Luen Ping's old age and fragile constitution should have been
unmistakably apparent and yet the prosecution failed to act with zeal and foresight in having his deposition or testimony
taken before the MeTC pursuant to Section 15, Rule 119 of the Revised Rules of Court. In fact, it should have been imperative
for the prosecution to have moved for the preservation of Li Luen Ping's testimony at that first instance given the fact that the
witness is a non-resident alien who can leave the Philippines anytime without any definite date of return. Obviously, the
prosecution allowed its main witness to leave the court's jurisdiction without availing of the court procedure intended to
preserve the testimony of such witness. The loss of its cause is attributable to no other party.
Still, even after failing to secure Li Luen Ping's conditional examination before the MeTC prior to said witness' becoming sick
and unavailable, the prosecution would capitalize upon its own failure by pleading for a liberal application of the rules on
depositions. It must be emphasized that while the prosecution must provide the accused every opportunity to take the
deposition of witnesses that are material to his defense in order to avoid charges of violating the right of the accused to
compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating
the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of
depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and
deposition.31
Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure for taking the deposition of an unavailable
prosecution witness when it upheld the trial court's order allowing the deposition of prosecution witness Li Luen Ping to take
place in a venue other than the court where the case is pending. This was certainly grave abuse of discretion.
WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated February 19, 2008 and the Resolution dated
November 28, 2008 of the Court of Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of the Regional Trial Court
which disallowed the deposition-taking in Laos, Cambodia is REINSTATED.
SO ORDERED.
 FIRST DIVISION

HO WAI PANG, G.R. No. 176229

Petitioner,

Present:

CORONA, C.J., Chairperson,

- versus - LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. October 19, 2011

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

DECISION

DEL CASTILLO, J.:

Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the
extrajudicial confession or admission made during such investigation.[1] “The admissibility of other evidence, provided they are relevant to
the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation.”[2]

Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, 2006 Decision[3] of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 01459 affirming the April 6, 1995 Decision[4] of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal Case No.
91-1592, finding him and his co-accused, namely, Law Ka Wang, Chan Chit Yue,[5] Wu Hing Sum, Tin San Mao[6] and Kin San Ho[7] guilty
beyond reasonable doubt for violation of Section 15, Article III[8] of Republic Act (R.A.) No. 6425 otherwise known as the Dangerous Drugs
Act of 1972. Also assailed is the January 16, 2007 CA Resolution[9] denying the motion for reconsideration thereto.

Factual Antecedents

On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines Flight No. 068 from Hongkong arrived at the
Ninoy Aquino International Airport (NAIA). Among the passengers were 13 Hongkong nationals who came to the Philippines as tourists. At
the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form to Customs Examiner Gilda L.
Cinco (Cinco), who was then manning Lane 8 of the Express Lane. Cinco examined the baggages of each of the 13 passengers as their turn
came up. From the first traveling bag, she saw few personal belongings such as used clothing, shoes and chocolate boxes which she
pressed. When the second bag was examined, she noticed chocolate boxes which were almost of the same size as those in the first
bag. Becoming suspicious, she took out four of the chocolate boxes and opened one of them. Instead of chocolates, what she saw inside
was white crystalline substance contained in a white transparent plastic. Cinco thus immediately called the attention of her immediate
superiors Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to call the Narcotics Command (NARCOM) and the
police. Thereupon, she guided the tourists to the Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier
discovered.

At the ICU, Cinco called the tourists one after the other using the passenger manifest and further examined their bags. The bag of
Law Ka Wang was first found to contain three chocolate boxes. Next was petitioner’s bag which contains nothing except for personal
effects. Cinco, however, recalled that two of the chocolate boxes earlier discovered at the express lane belong to him. Wu Hing Sum’s bag
followed and same yielded three chocolate boxes while the baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each contained two or
three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from the baggages of the six accused.

NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco pertaining to the presence of the chocolate
boxes. According to him, he conducted a test on the white crystalline substance contained in said chocolate boxes at the NAIA using the
Mandelline Re-Agent Test.[10] The result of his examination[11] of the white crystalline substance yielded positive for methamphetamine
hydrochloride orshabu. Thereafter, the chocolate boxes were bundled together with tape, placed inside a plastic bag and brought to the
Inbond Section.

The following day, September 7, 1991, the 13 tourists were brought to the National Bureau of Investigation (NBI) for further
questioning. The confiscated stuff were turned over to the Forensic Chemist who weighed and examined them. Findings show that its
total weight is 31.1126 kilograms and that the representative samples were positive for methamphetamine hydrochloride.[12] Out of the
13 tourists, the NBI found evidence for violation of R.A. No. 6425 only as against petitioner and his five co-accused.
 Accordingly, six separate Informations all dated September 19, 1991 were filed against petitioner and his co-accused. These
Informations were docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a Motion for
Reinvestigation[13]which the trial court granted. The reinvestigation conducted gave way to a finding of conspiracy among the accused and
this resulted to the filing of a single Amended Information[14] under Criminal Case No. 91-1592 and to the withdrawal of the other
Informations.[15] The Amended Information reads:

That on or about September 6, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully,
unlawfully and feloniously carry and transport into the country without lawful authority, 31.112 kilograms, more or less,
of METHAMPHETAMINE HYDROCHLORIDE, also popularly known as “SHABU”, a regulated drug.

CONTRARY TO LAW.[16]

After pleading not guilty to the crime charged,[17] all the accused testified almost identically, invoking denial as their defense. They
claimed that they have no knowledge about the transportation of illegal substance (shabu) taken from their traveling bags which were
provided by the travel agency.

Ruling of the Regional Trial Court

On April 6, 1995, the RTC rendered a Decision[18] finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as
amended, the decretal portion of which reads:

WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA WANG, CHAN CHIT YUE, HO
WAI PANG, WU HING SUM, TIN SUN MAO, AND KIN SAN HO (HO KIN SAN) GUILTY of Conspiracy in violating Section 15,
Article III, Republic Act No. 6425, as amended for having conspired to transport into the Philippines 31.112 kilograms of
methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby sentenced to suffer the PENALTY OF
IMPRISONMENT OF SIX (6) [sic] RECLUSION PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30)
THOUSAND PESOS (P30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant to Republic
Act No. 7659 considering its applicability to the accused though retroactively for having a less stricter penalty than that of
life imprisonment provided in Republic Act No. 6425. The fine of P30,000.00 for each accused is imposed pursuant to
R.A. No. 6425 it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH IMMEDIATE
DEPORTATION AFTER SERVICE OF SENTENCE. The penalty of death cannot be imposed since the offense was committed
prior to the effectivity of R.A. No. 7659.

Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY WONG, CHAN TAK PIU,
HO WAI LING AND INOCENCIA CHENG.

SO ORDERED.[19]

From this judgment, all the accused appealed to this Court where the case records were forwarded to per Order of the RTC dated
May 10, 1995.[20] Later, all the accused except for petitioner, filed on separate dates their respective withdrawal of appeal.[21] This Court,
after being satisfied that the withdrawing appellants were fully aware of the consequences of their action, granted the withdrawal of their
respective appeals through a Resolution dated June 18, 1997.[22] Per Entry of Judgment, [23] said Resolution became final and executory
on July 7, 1997. Consequently, petitioner was the only one left to pursue his appeal.

Petitioner filed his Brief[24] on April 6, 1998 while the brief[25] for the respondent People of the Philippines was filed on August 27,
1998 through the Office of the Solicitor General (OSG). Per Resolution[26] dated August 30, 2004, this Court referred the appeal to the CA for
proper disposition and determination pursuant to this Court’s ruling in People v. Mateo.[27]

Ruling of the Court of Appeals

On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC. While conceding that petitioner’s constitutional
right to counsel during the custodial investigation was indeed violated, it nevertheless went on to hold that there were other evidence
sufficient to warrant his conviction. The CA also rebuked petitioner’s claim that he was deprived of his constitutional and statutory right to
confront the witnesses against him. The CA gave credence to the testimonies of the prosecution witnesses and quoted with favor the trial
court’s ratiocination regarding the existence of conspiracy among the accused.

Undeterred, petitioner filed a Motion for Reconsideration[28] which the CA denied in its Resolution[29] dated January 16, 2007.

Hence, this petition for review on certiorari anchored on the following grounds:
 I
WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER
CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE
COURT OF APPEALS ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION.

II
THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

III
THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION’S EVIDENCE FAILED TO
ESTABLISH THE EXISTENCE OF A CONSPIRACY.

IV
THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF
BEYOND REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO PETITIONER BY
THE CONSTITUTION.[30]

OUR RULING

The petition lacks merit.

Section 12, Article III of the Constitution prohibits as evidence only confessions and
admissions of the accused as against himself.

Anent the error first assigned, petitioner takes issue on the fact that he was not assisted by a competent and independent lawyer
during the custodial investigation. He claimed that he was not duly informed of his rights to remain silent and to have competent counsel
of his choice. Hence, petitioner faults the CA in not excluding evidence taken during such investigation.

While there is no dispute that petitioner was subjected to all the rituals of a custodial questioning by the customs authorities and
the NBI in violation of his constitutional right under Section 12[31] of Article III of the Constitution, we must not, however, lose sight of the
fact that what said constitutional provision prohibits as evidence are only confessions and admissions of the accused as against
himself. Thus, inAquino v. Paiste,[32] the Court categorically ruled that “the infractions of the so-called Miranda rights render inadmissible
‘only the extrajudicial confession or admission made during custodial investigation.’ The admissibility of other evidence, provided they are
relevant to the issue and [are] not otherwise excluded by law or rules, [are] not affected even if obtained or taken in the course of custodial
investigation.”

In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The prosecution did not
present any extrajudicial confession extracted from him as evidence of his guilt. Moreover, no statement was taken from petitioner during
his detention and subsequently used in evidence against him. Verily, in determining the guilt of the petitioner and his co-accused, the trial
court based its Decision on the testimonies of the prosecution witnesses and on the existence of the confiscated shabu. As the Court held
in People v. Buluran,[33] “[a]ny allegation of violation of rights during custodial investigation is relevant and material only to cases in which an
extrajudicial admission or confession extracted from the accused becomes the basis of their conviction.” Hence, petitioner’s claim that the
trial court erred in not excluding evidence taken during the custodial investigation deserves scant consideration.

Petitioner cannot take refuge in this Court’s ruling in People v. Wong Chuen Ming[34] to exculpate himself from the crime charged.
Though there are semblance in the facts, the case of Ming is not exactly on all fours with the present case. The disparity is clear from the
evidence adduced upon which the trial courts in each case relied on in rendering their respective decisions. Apparently in Ming, the trial
court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic
bags. The Court construed the accused’s act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the
accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence
for having been obtained in violation of their constitutional rights. In ruling against the accused, the trial court also gave credence to the
sole testimony of the customs examiner whom it presumed to have performed his duties in regular manner. However, in reversing the
judgment of conviction, the Court noted that said examiner’s testimony was not corroborated by other prosecution witnesses.

On the other hand, petitioner’s conviction in the present case was on the strength of his having been caught in flagrante
delictotransporting shabu into the country and not on the basis of any confession or admission. Moreover, the testimony of Cinco was
found to be direct, positive and credible by the trial court, hence it need not be corroborated. Cinco witnessed the entire incident thus
providing direct evidence as eyewitness to the very act of the commission of the crime. As the Court held in People v Dela Cruz,[35] “[n]o
rule exists which requires a testimony to be corroborated to be adjudged credible. x x x Thus, it is not at all uncommon to reach a
conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found
positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction.”

Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case when there are stark differences between the
two cases. Cases must be decided based on their own unique facts and applicable law and jurisprudence.

Petitioner was not denied of his right to confrontation.

Turning now to the second assigned error, petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987
Philippine Constitution providing for the right to confrontation, viz:

Section 14. x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is
unjustifiable.

Petitioner asserts that he was deprived of his right to know and understand what the witnesses testified to. According to him, only a full
understanding of what the witnesses would testify to would enable an accused to comprehend the evidence being offered against him and
to refute it by cross-examination or by his own countervailing evidence.

In refutation, the OSG countered that petitioner was given the opportunity to confront his accusers and/or the witnesses of the
prosecution when his counsel cross-examined them. It is petitioner’s call to hire an interpreter to understand the proceedings before him
and if he could not do so, he should have manifested it before the court. At any rate, the OSG contends that petitioner was nevertheless
able to cross-examine the prosecution witnesses and that such examination suffices as compliance with petitioner’s right to confront the
witnesses against him.

We agree with the OSG.

As borne out by the records, petitioner did not register any objection to the presentation of the prosecution’s evidence particularly
on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly
prejudiced him. Still and all, the important thing is that petitioner, through counsel, was able to fully cross-examine Cinco and the other
witnesses and test their credibility. The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses
of the prosecution. InPeople v. Libo-on,[36] the Court held:

The right to confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing
criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine
them on their charges. The chief purpose of the right of confrontation is to secure the opportunity for cross-
examination, so that if the opportunity for cross-examination has been secured, the function and test of confrontation
has also been accomplished, the confrontation being merely the dramatic preliminary to cross-examination.

Under the circumstances obtaining, petitioner’s constitutional right to confront the witnesses against him was not impaired.

Conspiracy among the accused was duly established.

Respecting the third assigned error, we uphold the trial court’s finding of conspiracy which was quoted by the appellate court in
its assailed Decision, and which we once again herein reproduce with approval:

On the allegation of conspiracy, the Court finds [no] direct evidence to conclude conspiracy. However, just like
in other cases where conspiracy is not usually established by direct evidence but by circumstantial evidence, the Court
finds that there are enough circumstantial evidence which if taken together sufficiently prove conspiracy. First, it cannot
be denied that the accused somehow have known each other prior to their [departure] in Hong Kong for Manila.
Although Law Ka Wang denied having known any of the accused prior to the incident in NAIA, accused Ho Wai Pang
identified him as the one who assisted him in the supposed tour in the Philippines to the extent of directly dealing with
the travel agency and [that] Law Ka Wang was the one who received the personal things of Ho Wai Pang allegedly to be
place[d] in a bag provided for by the travel agency. Accused Wu Hing Sum has been known to accused Ho Kin San for
about two to three years as they used to work as cooks in a restaurant in Hong Kong. Accused Ho Wai Ling, who is still at
large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a way can lead to the
presumption that they have the capability to enter into a conspiracy. Second, all the illegal substances confiscated from
the six accused were contained in chocolate boxes of similar sizes and almost the same weight all contained in their
 luggages. The Court agrees with the finding of the trial prosecutor that under the given circumstances, the offense
charged [c]ould have been perpetrated only through an elaborate and methodically planned conspiracy with all the
accused assiduously cooperating and mutually helping each other in order to ensure its success.[37]

We find no cogent reason to reverse such findings.

“Conspiracy is [the] common design to commit a felony.”[38] “[C]onspiracy which determines criminal culpability need not entail a
close personal association or at least an acquaintance between or among the participants to a crime.”[39] “It need not be shown that the
parties actually came together and agreed in express terms to enter into and pursue a common design.”[40] “The assent of the minds may
be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are
parts of some complete whole” as we ruled in People v. Mateo, Jr.[41] Here, it can be deduced from petitioner and his co-accused’s
collective conduct, viewed in its totality, that there was a common design, concerted action and concurrence of sentiments in bringing
about the crime committed.

Petitioner’s guilt was proved beyond reasonable doubt.

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He makes capital on the contention
that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He claimed that it was his co-accused Sonny
Wong who took charge in ascribing upon him the possession of the two chocolate boxes.

Petitioner’s contentions fail to persuade.

True, when principal prosecution witness Cinco first testified on June 3, 1992, she declared that she did not see any chocolate boxes
but only personal effects in petitioner’s bag.[42] Nonetheless, she clarified in her succeeding testimony that she recalls taking the two
chocolate boxes from petitioner’s bag when they were still at the counter. This sufficiently explained why Cinco did not find any chocolate
boxes from petitioner’s bag when they were at the ICU.[43] To us, this slight clash in Cinco’s statements neither dilute her credibility nor the
veracity of her testimony.

The trial court’s words on this matter when it resolved petitioner’s Demurrer to Evidence in its Order[44] of February 16, 1993 is quite
enlightening. Thus –

In claiming that the evidences [sic] presented by the prosecution is insufficient to command conviction, the
Demurrer went on to say that the testimony of Hilda Cinco is either conjectural or hearsay and definitely missed its mark
in incriminating accused, Ho Wai Pang, because she even testified that she found nothing inside the hand-carried
luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was going on at the Intensive
Counting Unit (ICU). However, the same Hilda Cinco later on testified that from the express lane in going to the ICU, after
the discovery of shabu, she was already carrying with her four (4) chocolate boxes, two of [which] taken from the bag of
Tin Sun Mau and the other two retrieved from the luggage of herein movant, Ho Wai Pang. Categorically, Cinco
admitted it was the reason that at the ICU, Ho Wai Pang’s bag was already empty (pp. 53-54, TSN, June 3, 1992), but she
nonetheless recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such testimony is not
hearsay evidence. They are facts from the personal perception of the witness and out of her personal knowledge.
Neither is it conjectural.[45]

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in
truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of
said parts. “In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be
calibrated and considered.”[46] Also, where there is nothing in the records which would show a motive or reason on the part of the
witnesses to falsely implicate the accused, identification should be given full weight. Here, petitioner presented no evidence or anything to
indicate that the principal witness for the prosecution, Cinco, was moved by any improper motive, hence her testimony is entitled to full
faith and credit.

Verily, the evidence adduced against petitioner is so overwhelming that this Court is convinced that his guilt has been established
beyond reasonable doubt. Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed
in the very act of transporting, along with his co-accused, shabu into the country. In stark contrast, the evidence for the defense consists
mainly of denials.

Petitioner tried to show that he was not aware of the shabu inside his luggage considering that his bag was provided by the travel
agency. However, it bears stressing that the act of transporting a prohibited drug is a malum prohibitum because it is punished as an
offense under a special law. As such, the mere commission of the act is what constitutes the offense punished and same suffices to validly
charge and convict an individual caught committing the act so punished regardless of criminal intent. Moreover, beyond his bare denials,
petitioner has not presented any plausible proof to successfully rebut the evidence for the prosecution. “It is basic that affirmative
testimony of persons who are eyewitnesses of the events or facts asserted easily overrides negative testimony.”[47]
 All told, we are convinced that the courts below committed no error in adjudging petitioner guilty of transporting methamphetamine
hydrochloride or shabu into the country in violation of Section 15, Article III of R.A. No. 6425, as amended.

Penalty

As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and
jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was
already amended by Presidential Decree No. 1683.[48] The decree provided that for violation of said Section 15, the penalty of life
imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, R.A. No.
7659[49] further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the
new amendments, the penalty prescribed in Section 15 was changed from “life imprisonment to death and a fine ranging from P20,000.00
to P30,000.00” to “reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million”. On the other hand, Section 17 of R.A.
No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied
depending on the quantity of the dangerous drugs involved.

The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life
imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its
having a less stricter punishment.

We agree. In People v. Doroja,[50] we held:

In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more
lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded
retroactive application, x x x.

And, since “reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a
favorable effect to the accused, have, as to him, a retroactive effect”,[51] the penalty imposed by the trial court upon petitioner is
proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed
by the trial court upon petitioner, the same being more favorable to him.

WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006 Decision and January 16, 2007Resolution of
the Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED.

SO ORDERED.
HON. JUDGE JESUS B. MUPAS, Presiding Judge, G.R. No. 189365
Regional Trial Court, Branch 112 and CARMELITA
F. ZAFRA, Chief Administrative
Officer, DSWD,
Petitioners,
Present:

CARPIO, J.,
- versus - Chairperson,
BRION,
SERENO,
REYES, and
PEOPLE OF THE PHILIPPINES, PERLAS-BERNABE,* JJ.
thru its duly authorized representative, the Legal
Service of the DSWD, Quezon City and the
Office of the Solicitor
General, Respondents. Promulgated:

October 12, 2011

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

DECISION

SERENO, J.:

In this Petition for Review on Certiorari under Rule 45, private petitioner seeks the reversal of the Decision [1] dated 19
March 2009 issued by the Court of Appeals (CA) in CA-G.R. SP No. 105199. The CA Decision reversed and set aside the
Orders[2] dated 19 December 2007 and 2 June 2008 of the Regional Trial Court of Pasay City (Branch 112), granting her
demurrer to evidence in Criminal Case Nos. 02-0371 and 02-0372. Private petitioner also assails the CA Resolution dated 28
August 2009, denying her Motion for Reconsideration.

As the records and the CA found, private petitioner Carmelita F. Zafra (petitioner Zafra) was Supply Officer V[3] of the
Department of Social Welfare and Development (DSWD). On 14 November 1998, she arranged for the withdrawal for
replacement, of two hundred (200) cartons of Bear Brand Powdered Milk that were nearing their expiry date. She made the
arrangement for their withdrawal through DSWD personnel Marcelina Beltran, Administrative Officer III; and Manuelito Roga,
Laborer 1.[4]

Petitioner Zafra instructed Marcelina Beltran to have someone from the DSWD Property Division withdraw the 200
cartons of milk from the DSWD-Villamor Airbase Relief Operation Center (DSWD-VABROC) on 14 November 1998. Beltran
relayed this instruction to Roga. On the appointed date, however, no one from the Property Division arrived to pick up the
milk cases. Instead, three unidentified persons on board a four-wheeler truck came and hauled the 200 cases of milk. One of
the three persons who came to pick up the milk cases at the DSWD-VABROC premises introduced herself as Ofelia Saclayan to
Roga, the only DSWD employee present at that time.[5] Saclayan turns out to be the sister of Zafra. The 200 cases of milk
withdrawn by Saclayan and her unidentified companions were valued at three hundred six thousand seven hundred thirty-six
pesos (P306,736).[6]

An internal investigation was conducted by the DSWD on the persons involved in the loss of the milk cases. On 06 August
1999, the investigating committee of the DSWD issued a Memorandum[7] entitled “Report and Recommendation on the Loss
of the Two Hundred (200) Cases of Bear Brand Powdered Milk from DSWD-VABROC.” In brief, the committee report dismissed
petitioner Zafra and her co-employees Beltran and Roga, whom they implicated in the loss of the milk cases. The committee
found substantial evidence to hold petitioner Zafra guilty of dishonesty and “negligence of duty.”[8]

The report of the DSWD investigating committee finding petitioner Zafra and her co-employee Beltran guilty of
dishonesty and negligence of duty was appealed to the Civil Service Commission (Commission). On 03 December 1999, the
Commission promulgated Resolution No. 992652,[9] which slightly modified the findings of the committee. The Resolution,
while absolving petitioner Zafra of the charge of dishonesty, found her guilty of simple neglect as follows:
The Commission has noted, however, that Zafra is not that entirely innocent. For the records disclose
that it was she who made representation with the MEGA Commercial, the supplier of said milk, to withdraw
and replace those cases of milk that are nearing their expiry dates. Surprisingly, however, after November 14,
1998, when the 200 milk cases of milk were actually withdrawn from VABROC she never made any contact
with MEGA Commercial as to what further steps to take on the case, such as to retrieve the loss thereof and
have these replaced by the company. Neither did she make any further inquiry as to the condition of milk
from VABROC. This unnatural inaction or callousness displayed by Zafra and her utter apathy in the
performance of her official functions calls for the imposition of sanctions on her.
 ... ... ...

Being both government employees, Zafra and Beltran are required to perform their duties and
functions with the highest degree of responsibility, integrity, loyalty and efficiency. And since both of them
failed on this score, they must suffer the consequences of their negligence.

WHEREFORE, the respective appeals of Carmelita F. Zafra and Marcelina M. Beltran are hereby
dismissed for want of merit. They are however, found guilty only of simple Neglect of Duty for which they are
each imposed the penalty of six (6) months suspension without pay. The appealed decision is thus modified
accordingly.

Quezon City, December 03, 1999.[10]

On 15 February 2002, the Ombudsman filed two Informations with the Regional Trial Court of Pasay (RTC-Pasay) against
petitioner Zafra, Beltran and Roga, docketed as Criminal Case Nos. 02-0371 and 02-0372.
Under Criminal Case No. 02-0371, petitioner Zafra and her co-accused Beltran and Roga were charged with violating
Section 3 (e) of Republic Act No. 3019 (R.A. 3019), otherwise known as the “Anti-Graft and Corrupt Practices Act.” The
Information filed in this case reads:
The undersigned Prosecutor, Office of the Ombudsman hereby accuses Marcelina M. Beltran,
Carmelita Zafra, Manuelito T. Roga and Ofelia Saclayan for Violation of Section 3 (e) of RA 3019, as amended,
committed as follows:

That on or about 13 November 1998, or for sometime, prior, or subsequent thereto, in Pasay City,
and within the jurisdiction of this Honorable Court, accused Marcelina M. Beltran, Carmelita F. Zafra,
Carmelito T. Roga (sic), Administrative Officer III, Supply Officer V, and Laborer I, respectively of the
Department of Social Welfare and Development, while in the performance of their official duties, and in
connivance with Ofelia Saclayan, a private respondent, with evident bad faith, did then and there, wilfully,
unlawfully, and criminally, cause damage or undue injury to the government, particularly the Department of
Social Welfare and Development in the amount of Php 306,736.00, by making it appear that the 200 cases of
Bear Brand Powdered Milk stocked at the DSWD Villamor Airbase Relief Operation Center (DSWD-VABROC)
are about to expire and need to be changed, and thereafter, without complying with the standard operating
procedure in withdrawing goods from the bodega, did then and there arrange for the immediate withdrawal
of the subject goods on the next day which was a Saturday, a non-working day, and appropriate the said
goods for themselves.

CONTRARY TO LAW.[11]

Petitioner Zafra, Beltran and Roga were charged with malversation under Article 217 of the Revised Penal Code in
Criminal Case No. 02-0372. The Information reads:
The undersigned Ombudsman Prosecutor, Office of the Ombudsman hereby accuses Carmelita Zafra,
Marcelina M. Beltran Manuelito T. Roga and Ofelia Saclayan for Malversation under Article 217 of the
Revised Penal Code, as amended, committed as follows:

That on or about 13 November 1998, or for sometime prior, or subsequent thereto, in Pasay City,
and within the jurisdiction of this Honorable Court, accused Marcelina M. Beltran, Administrative Officer III of
the Department of Social Welfare and Development, Villamor Airbase Relief Operation Center (DSWD-
VABROC), an accountable public officer by virtue of her being the custodian of the goods inside the DSWD-
VABROC bodega, in connivance with Carmelita F. Zafra, and Manuelito T. Roga, Supply Officer IV and Laborer
I, respectively of the Department of Social Welfare and Development and with the indispensable cooperation
of Ofelia T. Saclayan, a private respondent, did then and there, wilfully, unlawfully, and feloniously, cause the
unauthorized withdrawal of the 200 cases of Bear Brand Powdered Milk, a public property owned by the
DSWD stock[ed] at VABROC, and thereafter, did then and there appropriate the said goods for themselves to
the prejudice of the DSWD in the amount of Php 306,736.00.

CONTRARY TO LAW.[12]

The cases against petitioner Zafra and her co-accused were raffled to Branch 112 of RTC-Pasay. Upon arraignment, they
pleaded “not guilty” to the charges.

On 06 August 2003, the pretrial of the case was conducted, attended by only petitioner Zafra and Beltran.[13] Thereafter,
a joint trial for Criminal Case Nos. 02-0371 and 02-0372 ensued.

During the trial on the merits, the prosecution presented four witnesses to build up its case. The prosecution presented
Consolacion Obrique dela Cruz, a utility worker at the DSWD Property and Supply; Atty. Nelson Todas, former DSWD Legal
Officer V; Ruby Maligo Cresencio, the operations officer of Mega Commercial Trading, which supplied the stolen milk cases to
DSWD; and Isidro Tuastumban, a security guard posted at the DSWD lobby at the time the incident happened.

After the prosecution rested its case, petitioner Zafra filed a Motion for Demurrer to Evidence.[14] She alleged therein
that the prosecution failed to present proof that she and her co-accused had wilfully, unlawfully, and feloniously caused the
withdrawal of the 200 cases of Bear Brand Powdered Milk and appropriated these for themselves to the prejudice of DSWD.
Thus, she concluded that the prosecution failed to establish the elements of the crime of malversation under Art. 217 of the
Revised Penal Code. She likewise contended that the prosecution was not able to present proof that she and her co-accused
had done so in violation of Section 3 (e) of R. A. 3019.

The lower court required the prosecution to comment on petitioner Zafra’s demurrer to evidence. In its
Comment,[15] the prosecution contradicted the allegations therein and claimed to have established and proved the elements
of the crimes as charged against petitioner and her co-accused. It also alleged that it was able to establish conspiracy among
the accused and had evidence to show that petitioner Zafra caused the withdrawal of the goods, subject matter of this case,
through her sister -- co-accused Ofelia Saclayan, who was an unauthorized person.

On 19 December 2007, public respondent Judge Mupas issued an Order[16] granting the demurrer to evidence of
petitioner Zafra. Public respondent ruled that, after evaluating the testimonies of the witnesses for the prosecution, he found
them substantially insufficient to warrant the conviction of petitioner Zafra under the charges filed against her by the
Ombudsman. With the grant of her demurrer to evidence, petitioner was acquitted. [17] The decretal portion of the Order
reads:
WHEREFORE, the demurrer to evidence is GRANTED.

Consequently, accused CARMELITA ZAFRA y FUENTES is hereby ACQUITTED.

SO ORDERED.

On 28 January 2008, the prosecution, through its private prosecutor, filed a Motion for Reconsideration of the Order
dated 19 December 2007 issued by public respondent. On 2 June 2008, the motion was denied for lack of merit.[18]

On 09 September 2008, the People filed with the CA a Petition for Certiorari under Rule 65, assailing the lower court’s
grant of petitioner Zafra’s demurrer to evidence, resulting in her acquittal.[19] The petition, filed through the DSWD, which was
represented by its legal officers, raised the following issues:
Whether or not the Honorable Judge committed grave abuse of discretion in denying petitioner’s
Motion for Reconsideration of its Order granting private respondent’s demurrer to evidence;

Whether or not the Honorable Judge committed grave abuse of discretion when he failed to
appreciate the evidence of the prosecution providing beyond reasonable doubt private respondent’s
negligence which resulted to (sic) the unauthorized withdrawal of the 200 cases of Bear Brand Powdered
Milk at the VABROC belonging to the government.[20]

The People’s Petition for Certiorari was docketed as CA-G.R. SP No. 105199 and was raffled to the appellate court’s
Special Sixth Division. On 22 September 2008, a Resolution[21] was promulgated, directing petitioner Zafra to file a Comment
on the certiorari petition and thereafter instructing the Office of the Solicitor General to file a Reply thereto.

On 06 October 2008, petitioner Zafra, as private respondent in the appeal, filed her Comment and sought to dismiss the
Petition for Certiorari instituted by the prosecution.[22] In her Comment, she assailed the appeal of the DSWD for being
improper, having been filed directly with the appellate court instead of seeking the intervention of the Office of the Solicitor
General (OSG) to act on DSWD’s behalf. She also pointed out the lack of authority of the signatory who had executed the
certificate of non-forum shopping attached to the petition.

On 06 November 2008, the OSG filed a Manifestation and Motion[23] adopting the Petition for Certiorari filed by the
DSWD. It prayed for the relaxation of the Rules on Procedure pertaining to the authority of the person signing the Verification
and Certification against forum-shopping attached to the petition filed by the DSWD.

On 19 November 2008, petitioner Zafra filed a Comment/Opposition[24] to the OSG’s Manifestation and Motion and
moved that it be expunged from the records, as it was filed out of time.

On 23 January 2009, the CA, through its Fourth Division, issued a Resolution[25] granting the OSG’s Manifestation and
Motion.

On 19 March 2009, the appellate court, through its Third Division, promulgated a Decision [26] granting the People’s
petition and revoking and setting aside the lower court’s Order granting private respondent’s demurrer to evidence. In its
Decision reversing the trial court’s Order, the CA found that public respondent Judge Mupas committed grave abuse of
discretion through his grant of private respondent’s demurrer, which consequently resulted in her acquittal. Holding that the
prosecution was able to present sufficient evidence to prove the elements of the crimes in the Information filed against
private respondent, the appellate court ruled as follows:
 A careful reading of the 19 December 2007 Order, supra, showed that the court a quo in granting the
Respondent’s demurrer to evidence relied heavily on the ground that the Petitioner miserably failed to show
that the Respondent had any direct participation in the actual withdrawal of the goods. This may be gleaned
from the pertinent portion of the 19 December 2007 Order, supra, to wit:

xxx There is no denying that the prosecution, after presenting all its witnesses and
documentary evidence has miserably failed to prove the guilt of the accused Carmelita Zafra
beyond reasonable doubt. The prosecution has never proven any direct participation of the
herein accused to the actual withdrawal of the goods. The prosecution witnesses presented
testified during cross-examination that they have no personal knowledge nor did they see that
the accused Carmelita Zafra actually withdraw (sic) or cause[d] the withdrawal of the goods from
VABROC. The prosecution proved the relationship between Carmelita Zafra and a Ofelia
Saclayan, the fact that Carmelita Zafra coordinated with the prosecution witness Ruby
Crescencio for the return of the 200 cases of Bear Brand Powdered Milk which were alleged to
be near expiry but it did not proved (sic) that on the day when the goods were withdrawn from
VABROC[,] accused Carmelita Zafra had a direct participation for its withdrawal.

... ... ...

It bears to emphasize that the crime of malversation may be committed either through a positive act
of misappropriation of public funds or property or passively through negligence by allowing another to
commit such misappropriation. Thus, the Petitioner’s alleged failure to prove the Respondent’s direct
participation in the withdrawal of the 200 cases of milk did not altogether rule out malversation as
the dolo or culpa in malversation is only a modality in the perpetration of the felony.

Besides, even if the Information in Criminal Case No. 02-0372, supra, alleges willful malversation, this
does not preclude conviction of malversation through negligence if the evidence sustains malversation
through negligence. On this score, let US refer to the explicit pronouncement of the Supreme Court in People
v. Uy, Jr., thus:

xxx Even when the information charges willful malversation, conviction for
malversation through negligence may still be adjudged if the evidence ultimately proves that
mode of commission of the offense.

Likewise, We find that the court a quo committed grave abuse of discretion in acquitting the
Respondent for violation of Section 3(e) of RA 3019 ...
... ... ...

As earlier discussed, the court a quo acquitted the Respondent of the offense charged mainly because
of the alleged lack of any proof of her direct participation in the withdrawal of the 200 cases of Bear Brand
powdered milk. However, in view of the People’s evidence showing Respondent’s inexcusable negligence in
the withdrawal of the goods in question, Respondent cannot likewise be acquitted of violation of Section 3(e)
of RA 3019 since inexcusable negligence is one of the elements of the said offense.

In sum, We hold that the court a quo committed grave abuse of discretion in granting the
Respondent’s demurrer to evidence, which resulted to her untimely acquittal.

WHEREFORE, instant Petition is hereby GRANTED. The court a quo’s challenged Orders are REVOKED
and SET ASIDE. The case is hereby REMANDED to the court a quo for further proceedings.

SO ORDERED.[27]

Petitioner Zafra filed a Motion for Reconsideration[28] dated 31 March 2009 praying that the 19 March 2009 Decision of
the CA reversing the lower court’s grant of her demurrer to evidence be set aside. She further prayed that the criminal cases
filed against her be dismissed with prejudice.

On 09 June 2009, the OSG filed its Comment[29] on the Motion for Reconsideration of petitioner Zafra. It moved for the
denial of her Motion for Reconsideration and prayed that the assailed Decision of the Court of Appeals in CA-G.R. SP No.
105199 be affirmed.

The CA, through its former Third Division, issued a Resolution[30] on 28 August 2009 denying petitioner’s Motion for
Reconsideration. The appellate court found that the issues she raised had been sufficiently considered and discussed in its 19
March 2009 Decision.

On 19 October 2009, petitioner Zafra filed her Petition for Review on Certiorari[31] under Rule 45 of the Rules on Civil
Procedure. She assailed the 19 March 2009 Decision of the Court of Appeals in CA-G.R. SP No. 105199, as well as the 28
August 2009 Resolution denying her Motion for Reconsideration.
 We AFFIRM the entire ruling of the Court of Appeals.

After a thorough review of the records of this case, particularly the issues proffered by petitioner, we adopt the findings
of the appellate court. We find no reversible error in the ruling which is eloquently supported by existing jurisprudence.[32]

We agree with the CA’s disquisition that the lower court’s grant of the demurrer to evidence of petitioner Zafra was
attended by grave abuse of discretion. The prosecution’s evidence was, prima facie, sufficient to prove the criminal charges
filed against her for her inexcusable negligence, subject to the defense that she may present in the course of a full-blown trial.
The lower court improperly examined the prosecution’s evidence in the light of only one mode of committing the crimes
charged; that is, through positive acts. The appellate court correctly concluded that the crime of malversation may be
committed either through a positive act of misappropriation of public funds or passively through negligence by allowing
another to commit such misappropriation.[33]

As a general rule, an order granting the accused’s demurrer to evidence amounts to an acquittal. There are certain
exceptions, however, as when the grant thereof would not violate the constitutional proscription on double jeopardy. For
instance, this Court ruled that when there is a finding that there was grave abuse of discretion on the part of the trial court in
dismissing a criminal case by granting the accused’s demurrer to evidence, its judgment is considered void, as this Court ruled
in People v. Laguio, Jr.:[34]

By this time, it is settled that the appellate court may review dismissal orders of trial courts granting
an accused’s demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65
based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such
dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of
dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right
of the accused against double jeopardy is not violated.[35]

In the instant case, having affirmed the CA finding grave abuse of discretion on the part of the trial court when it
granted the accused’s demurrer to evidence, we deem its consequent order of acquittal void.

Further, we do not find any pronouncement by the trial court on whether the act or omission of petitioner under the
circumstances would entail civil liability. Therefore, the CA properly ordered the remand of the case to the lower court for
further proceedings to determine whether petitioner is civilly liable for the loss of the milk cartons.

WHEREFORE, we DENY the Petition and affirm in toto the 19 March 2009 Decision of the Court of Appeals and its 28
August 2009 Resolution. Let the name of Judge Jesus B. Mupas be stricken off as petitioner, as such appellation unilaterally
made by petitioner Carmelita F. Zafra, is improper.

SO ORDERED.
BALGAMELO CABILING MA, FELIX CABILING G.R. No. 183133
MA, JR., andVALERIANO CABILING MA,
Petitioners,

Present:

-versus- CORONA,C.J.,
Chairperson,
VELASCO, JR.,
NACHURA,*
LEONARDO-DE CASTRO, and
PEREZ, JJ.
COMMISSIONER ALIPIO F. FERNANDEZ, JR.,
ASSOCIATE COMMISSIONER ARTHEL B.
CARONOÑGAN, ASSOCIATE COMMISSIONER
JOSE DL. CABOCHAN, ASSOCIATE
COMMISSIONER TEODORO B. DELARMENTE
AND ASSOCIATE COMMISSIONER FRANKLIN Z.
LITTAUA, in their capacities as Chairman and
Members of the Board of Commissioners
(Bureau of Immigration), and MAT G.
CATRAL,
Respondents.

Promulgated:

July 26, 2010

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

DECISION

PEREZ, J.:

Should children born under the 1935 Constitution of a Filipino mother and an alien father, who executed an affidavit
of election of Philippine citizenship and took their oath of allegiance to the government upon reaching the age of majority, but
who failed to immediately file the documents of election with the nearest civil registry, be considered foreign nationals
subject to deportation as undocumented aliens for failure to obtain alien certificates of registration?

Positioned upon the facts of this case, the question is translated into the inquiry whether or not the omission negates
their rights to Filipino citizenship as children of a Filipino mother, and erase the years lived and spent as Filipinos.

The resolution of these questions would significantly mark a difference in the lives of herein petitioners.

The Facts

Balgamelo Cabiling Ma (Balgamelo), Felix Cabiling Ma, Jr. (Felix, Jr.), Valeriano Cabiling Ma (Valeriano), Lechi Ann Ma
(Lechi Ann), Arceli Ma (Arceli), Nicolas Ma (Nicolas), and Isidro Ma (Isidro) are the children of Felix (Yao Kong) Ma, [1] a
Taiwanese, and Dolores Sillona Cabiling, a Filipina.[2]
Records reveal that petitioners Felix, Jr., Balgamelo and Valeriano were all born under aegis of the 1935 Philippine
Constitution in the years 1948, 1951, and 1957, respectively.[3]

They were all raised in the Philippines and have resided in this country for almost sixty (60) years; they spent their
whole lives, studied and received their primary and secondary education in the country; they do not speak nor understand the
Chinese language, have not set foot in Taiwan, and do not know any relative of their father; they have not even traveled
abroad; and they have already raised their respective families in the Philippines.[4]

During their age of minority, they secured from the Bureau of Immigration their Alien Certificates of Registration
(ACRs). [5]

Immediately upon reaching the age of twenty-one, they claimed Philippine citizenship in accordance with Section
1(4), Article IV, of the 1935 Constitution, which provides that “(t)hose whose mothers are citizens of the Philippines and, upon
reaching the age of majority, elect Philippine citizenship” are citizens of the Philippines. Thus, on 15 August 1969, Felix, Jr.
executed his affidavit of election of Philippine citizenship and took his oath of allegiance before then Judge Jose L. Gonzalez,
Municipal Judge, Surigao, Surigao del Norte.[6] On 14 January 1972, Balgamelo did the same before Atty. Patrocinio C. Filoteo,
Notary Public,Surigao City, Surigao del Norte.[7] In 1978, Valeriano took his oath of allegiance before then Judge Salvador C.
Sering, City Courtof Surigao City, the fact of which the latter attested to in his Affidavit of 7 March 2005.[8]
Having taken their oath of allegiance as Philippine citizens, petitioners, however, failed to have the necessary
documents registered in the civil registry as required under Section 1 of Commonwealth Act No. 625 (An Act Providing the
Manner in which the Option to Elect Philippine Citizenship shall be Declared by a Person whose Mother is a Filipino Citizen). It
was only on 27 July 2005 or more than thirty (30) years after they elected Philippine citizenship that Balgamelo and Felix, Jr.
did so.[9] On the other hand, there is no showing that Valeriano complied with the registration requirement.

Individual certifications[10] all dated 3 January 2005 issued by the Office of the City Election Officer, Commission on
Elections, Surigao City, show that all of them are registered voters of Barangay Washington, Precinct No. 0015A since June
1997, and that records on previous registrations are no longer available because of the mandatory general registration every
ten (10) years. Moreover, aside from exercising their right of suffrage, Balgamelo is one of the incumbent Barangay
Kagawads in BarangayWashington, Surigao City.[11]

Records further reveal that Lechi Ann and Arceli were born also in Surigao City in 1953[12] and 1959,[13] respectively. The
Office of the City Civil Registrar issued a Certification to the effect that the documents showing that Arceli elected Philippine
citizenship on 27 January 1986 were registered in its Office on 4 February 1986. However, no other supporting documents
appear to show that Lechi Ann initially obtained an ACR nor that she subsequently elected Philippine citizenship upon
reaching the age of majority. Likewise, no document exists that will provide information on the citizenship of Nicolas and
Isidro.

The Complaint

On 16 February 2004, the Bureau of Immigration received the Complaint-Affidavit[14] of a certain Mat G. Catral (Mr.
Catral), alleging that Felix (Yao Kong) Ma and his seven (7) children are undesirable and overstaying aliens. Mr. Catral,
however, did not participate in the proceedings, and the Ma family could not but believe that the complaint against them was
politically motivated because they strongly supported a candidate in Surigao City in the 2004 National and Local Elections.[15]

On 9 November 2004, the Legal Department of the Bureau of Immigration charged them for violation of Sections
37(a)(7)[16]and
45(e)[17] of Commonwealth Act No. 613, otherwise known as the Philippine Immigration Act of 1940, as
amended. The Charge Sheet[18] docketed as BSI-D.C. No. AFF-04-574 (OC-STF-04-09/23-1416) reads, in part:

That Respondents x x x, all Chinese nationals, failed and continuously failed to present any valid
document to show their respective status in the Philippines. They likewise failed to produce documents to
show their election of Philippines (sic) citizenship, hence, undocumented and overstaying foreign nationals in
the country.

That respondents, being aliens, misrepresent themselves as Philippine citizens in order to evade the
requirements of the immigration laws.

Ruling of the Board of Commissioners, Bureau of Immigration

After Felix Ma and his seven (7) children were afforded the opportunity to refute the allegations, the Board of
Commissioners (Board) of the Bureau of Immigration (BI), composed of the public respondents, rendered a Judgment dated 2
February 2005 finding that Felix Ma and his children violated Commonwealth Act No. 613, Sections 37(a)(7) and 45(e) in
relation to BI Memorandum Order Nos. ADD-01-031 and ADD-01-035 dated 6 and 22 August 2001, respectively.[19]

The Board ruled that since they elected Philippine citizenship after the enactment of Commonwealth Act No. 625,
which was approved on 7 June 1941, they were governed by the following rules and regulations:

1. Section 1 of Commonwealth Act No. 625, providing that the election of Philippine citizenship embodied in a
statement sworn before any officer authorized to administer oaths and the oath of allegiance shall be filed with the nearest
civil registry;[20] and Commission of Immigration and Deportation (CID, now Bureau of Immigration [BI]) Circular dated 12 April
1954,[21] detailing the procedural requirements in the registration of the election of Philippine citizenship.

2. Memorandum Order dated 18 August 1956[22] of the CID, requiring the filing of a petition for the cancellation of
their alien certificate of registration with the CID, in view of their election of Philippine citizenship;

3. Department of Justice (DOJ) Opinion No. 182, 19 August 1982; and DOJ Guidelines, 27 March 1985, requiring that
the records of the proceedings be forwarded to the Ministry (now the Department) of Justice for final determination and
review.[23]

As regards the documentation of aliens in the Philippines, Administrative Order No. 1-93 of the Bureau of
Immigration[24]requires that ACR, E-series, be issued to foreign nationals who apply for initial registration, finger printing and
issuance of an ACR in accordance with the Alien Registration Act of 1950.[25] According to public respondents, any foreign
national found in possession of an ACR other than the E-series shall be considered improperly documented aliens and may be
proceeded against in accordance with the Immigration Act of 1940 or the Alien Registration Act of 1950, as amended.[26]

Supposedly for failure to comply with the procedure to prove a valid claim to Philippine citizenship via election
proceedings, public respondents concluded that Felix, Jr. Balgamelo, Arceli, Valeriano and Lechi Ann are undocumented
and/or improperly documented aliens.[27]

Nicolas and Isidro, on the other hand, did not submit any document to support their claim that they are Philippine
citizens. Neither did they present any evidence to show that they are properly documented aliens. For these reasons, public
respondents likewise deemed them undocumented and/or improperly documented aliens.[28]

The dispositive portion[29] of the Judgment of 2 February 2005 reads:

1. Subject to the submission of appropriate clearances, summary deportation of Felix (Yao Kong) Ma,
Felix Ma, Jr., Balgamelo Ma, Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma,
Taiwanese [Chinese], under C.A. No. 613, Sections 37(a)(7), 45(e) and 38 in relation to BI M.O. Nos. ADD-
01-031 and ADD-01-035 dated 6 and 22 August 2001, respectively;

2. Issuance of a warrant of deportation against Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma,
Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma under C.A. No. 613, Section 37(a);

3. Inclusion of the names of Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma, Valeriano Ma, Lechi Ann Ma,
Nicolas Ma, Arceli Ma and Isidro Ma in the Immigration Blacklist; and

4. Exclusion from the Philippines of Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma, Valeriano Ma, Lechi
Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma under C.A. No. 613, Section 29(a)(15). (Emphasis supplied.)

In its Resolution[30] of 8 April 2005, public respondents partially reconsidered their Judgment of 2 February
2005. They were convinced that Arceli is an immigrant under Commonwealth Act No. 613, Section 13(g).[31] However, they
denied the Motion for Reconsideration with respect to Felix Ma and the rest of his children.[32]

Ruling of the Court of Appeals

On 3 May 2005, only Balgamelo, Felix, Jr., and Valeriano filed the Petition for Certiorari under Rule 65 of the 1997
Rules of Civil Procedure before the Court of Appeals, which was docketed as CA-G.R. SP No. 89532. They sought the
nullification of the issuances of the public respondents, to wit: (1) the Judgment dated 2 February 2005, ordering the summary
deportation of the petitioners, issuance of a warrant of deportation against them, inclusion of their names in the Immigration
Blacklist, and exclusion of the petitioners from the Philippines; and (2) the Resolution dated 8 April 2005, denying the
petitioners’ Motion for Reconsideration.

On 29 August 2007, the Court of Appeals dismissed the petition[33] after finding that the petitioners “failed to comply
with the exacting standards of the law providing for the procedure and conditions for their continued stay in
the Philippines either as aliens or as its nationals.”[34]

On 29 May 2008, it issued a Resolution[35] denying the petitioners’ Motion for Reconsideration dated 20 September
2007.

To reiterate, a person’s continued and uninterrupted stay in the Philippines, his being a registered
voter or an elected public official cannot vest in him Philippine citizenship as the law specifically lays down the
requirements for acquisition of Philippine citizenship by election. The prescribed procedure in electing
Philippine citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to
execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest civil
registry. The constitutional mandate concerning citizenship must be adhered to strictly. Philippine
citizenship can never be treated like a commodity that can be claimed when needed and suppressed when
convenient. One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship.
As such, he should avail of the right with fervor, enthusiasm and promptitude.[36]

Our Ruling

The 1935 Constitution declares as citizens of the Philippines those whose mothers are citizens of the Philippines and
elect Philippine citizenship upon reaching the age of majority. The mandate states:

Section 1. The following are citizens of the Philippines:

(1) xxx;
 xxxx

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect
Philippine citizenship.[37]

In 1941, Commonwealth Act No. 625 was enacted. It laid down the manner of electing Philippine citizenship, to wit:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), Section 1,
Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the party
concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil
registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the
Constitution and the Government of the Philippines.

The statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath; (2) an oath of
allegiance to the Constitution and Government of the Philippines; and (3) registration of the statement of election and of the
oath with the nearest civil registry.

In Re:Application for Admission to the Philippine Bar, Vicente D. Ching,[38] we determined the meaning of the period of
election described by phrase “upon reaching the age of majority.” Our references were the Civil Code of the Philippines, the
opinions of the Secretary of Justice, and the case of Cueco v. Secretary of Justice.[39] We pronounced:

x x x [T]he 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the election of
Philippine citizenship should be made. The 1935 Charter only provides that the election should be made
“upon reaching the age of majority.” The age of majority then commenced upon reaching twenty-one (21)
years.[40] In the opinions of the Secretary of Justice on cases involving the validity of election of Philippine
citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to the
effectivity of the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship
was, in turn, based on the pronouncements of the Department of State of the United States Government to
the effect that the election should be made within a reasonable time after attaining the age of
majority.[41] The phrase “reasonable time” has been interpreted to mean that the elections should be made
within three (3) years from reaching the age of majority.[42] However, we held in Cue[n]co vs. Secretary of
Justice,[43] that the three (3) year period is not an inflexible rule. We said:

It is true that this clause has been construed to mean a reasonable time after
reaching the age of majority, and that the Secretary of Justice has ruled that three (3) years
is the reasonable time to elect Philippine citizenship under the constitutional provision
adverted to above, which period may be extended under certain circumstances, as when the
person concerned has always considered himself a Filipino.

However, we cautioned in Cue[n]co that the extension of the option to elect Philippine citizenship is not
indefinite.

Regardless of the foregoing, petitioner was born on February 16, 1923. He became
of age on February 16, 1944. His election of citizenship was made on May 15, 1951, when
he was over twenty-eight (28) years of age, or over seven (7) years after he had reached the
age of majority. It is clear that said election has not been made “upon reaching the age of
majority.[44]

We reiterated the above ruling in Go, Sr. v. Ramos,[45] a case in which we adopted the findings of the appellate court
that the father of the petitioner, whose citizenship was in question, failed to elect Philippine citizenship within the reasonable
period of three (3) years upon reaching the age of majority; and that “the belated submission to the local civil registry of the
affidavit of election and oath of allegiance x x x was defective because the affidavit of election was executed after the oath of
allegiance, and the delay of several years before their filing with the proper office was not satisfactorily explained.”[46]

In both cases, we ruled against the petitioners because they belatedly complied with all the requirements. The acts of
election and their registration with the nearest civil registry were all done beyond the reasonable period of three years upon
reaching the age of majority.

The instant case presents a different factual setting. Petitioners complied with the first and second requirements
upon reaching the age of majority. It was only the registration of the documents of election with the civil registry that was
belatedly done.

We rule that under the facts peculiar to the petitioners, the right to elect Philippine citizenship has not been lost and
they should be allowed to complete the statutory requirements for such election.
 Such conclusion, contrary to the finding of the Court of Appeals, is in line with our decisions in In Re:Florencio
Mallare,[47]Co v. Electoral Tribunal of the House of Representatives,[48] and Re:Application for Admission to the Philippine Bar,
Vicente D. Ching.[49]

In Mallare, Esteban’s exercise of the right of suffrage when he came of age was deemed to be a positive act of
election of Philippine citizenship.[50] The Court of Appeals, however, said that the case cannot support herein petitioners’
cause, pointing out that, unlike petitioner, Esteban is a natural child of a Filipina, hence, no other act would be necessary to
confer on him the rights and privileges of a Filipino citizen,[51] and that Esteban was born in 1929[52] prior to the adoption of
the 1935 Constitution and the enactment of Commonwealth Act No. 625.[53]

In the Co case, Jose Ong, Jr. did more than exercise his right of suffrage, as he established his life here in
the Philippines.[54] Again, such circumstance, while similar to that of herein petitioners’, was not appreciated because it was
ruled that any election of Philippine citizenship on the part of Ong would have resulted in absurdity, because the law itself had
already elected Philippine citizenship for him[55] as, apparently, while he was still a minor, a certificate of naturalization was
issued to his father.[56]

In Ching, it may be recalled that we denied his application for admission to the Philippine Bar because, in his case, all
the requirements, to wit: (1) a statement of election under oath; (2) an oath of allegiance to the Constitution and Government
of the Philippines; and (3) registration of the statement of election and of the oath with the nearest civil registry were
complied with only fourteen (14) years after he reached the age of majority. Ching offered no reason for the late election of
Philippine citizenship.[57]

In all, the Court of Appeals found the petitioners’ argument of good faith and “informal election” unacceptable and
held:

Their reliance in the ruling contained in Re:Application for Admission to the Philippine Bar, Vicente D.
Ching, [which was decided on 1 October 1999], is obviously flawed. It bears emphasis that the Supreme
Court, in said case, did not adopt the doctrine laid down in In Re: Florencio Mallare. On the contrary, the
Supreme Court was emphatic in pronouncing that “the special circumstances invoked by Ching, i.e., his
continuous and uninterrupted stay in the Philippines and his being a certified public accountant, a registered
voter and a former elected public official, cannot vest in him Philippine citizenship as the law specifically lays
down the requirements for acquisition of Philippine citizenship by election.[58]

We are not prepared to state that the mere exercise of suffrage, being elected public official, continuous and
uninterrupted stay in the Philippines, and other similar acts showing exercise of Philippine citizenship can take the place of
election of citizenship. What we now say is that where, as in petitioners’ case, the election of citizenship has in fact been
done and documented within the constitutional and statutory timeframe, the registration of the documents of election
beyond the frame should be allowed if in the meanwhile positive acts of citizenship have publicly, consistently, and
continuously been done. The actual exercise of Philippine citizenship, for over half a century by the herein petitioners, is
actual notice to the Philippine public which is equivalent to formal registration of the election of Philippine citizenship.

For what purpose is registration?

In Pascua v. Court of Appeals,[59] we elucidated the principles of civil law on registration:

To register is to record or annotate. American and Spanish authorities are unanimous on the
meaning of the term “to register” as “to enter in a register; to record formally and distinctly; to enroll; to
enter in a list.”[60] In general, registration refers to any entry made in the books of the registry, including both
registration in its ordinary and strict sense, and cancellation, annotation, and even the marginal notes. In
strict acceptation, it pertains to the entry made in the registry which records solemnly and permanently the
right of ownership and other real rights.[61] Simply stated, registration is made for the purpose
of notification.[62]

Actual knowledge may even have the effect of registration as to the person who has knowledge thereof. Thus, “[i]ts
purpose is to give notice thereof to all persons (and it) operates as a notice of the deed, contract, or instrument to
others.”[63] As pertinent is the holding that registration “neither adds to its validity nor converts an invalid instrument into a
valid one between the parties.”[64] It lays emphasis on the validity of an unregistered document.

Comparable jurisprudence may be consulted.

In a contract of partnership, we said that the purpose of registration is to give notice to third parties; that failure to
register the contract does not affect the liability of the partnership and of the partners to third persons; and that neither does
such failure affect the partnership’s juridical personality.[65] An unregistered contract of partnership is valid as among the
partners, so long as it has the essential requisites, because the main purpose of registration is to give notice to third parties,
and it can be assumed that the members themselves knew of the contents of their contract.[66] The non-registration of a deed
of donation does not also affect its validity. Registration is not a requirement for the validity of the contract as between the
parties, for the effect of registration serves chiefly to bind third persons.[67]
 Likewise relevant is the pronouncement that registration is not a mode of acquiring a right. In an analogous case
involving an unrecorded deed of sale, we reiterated the settled rule that registration is not a mode of acquiring ownership.

Registration does not confer ownership. It is not a mode of acquiring dominion, but only a means
of confirming the fact of its existence with notice to the world at large.[68]

Registration, then, is the confirmation of the existence of a fact. In the instant case, registration is the confirmation of
election as such election. It is not the registration of the act of election, although a valid requirement under Commonwealth
Act No. 625, that will confer Philippine citizenship on the petitioners. It is only a means of confirming the fact that citizenship
has been claimed.

Indeed, we even allow the late registration of the fact of birth and of marriage.[69] Thus, has it been admitted through
existing rules that the late registration of the fact of birth of a child does not erase the fact of birth. Also, the fact of marriage
cannot be declared void solely because of the failure to have the marriage certificate registered with the designated
government agency.
Notably, the petitioners timely took their oath of allegiance to the Philippines. This was a serious undertaking. It was
commitment and fidelity to the state coupled with a pledge “to renounce absolutely and forever all allegiance” to any other
state. This was unqualified acceptance of their identity as a Filipino and the complete disavowal of any other nationality.

Petitioners have passed decades of their lives in the Philippines as Filipinos. Their present status having been formed
by their past, petitioners can no longer have any national identity except that which they chose upon reaching the age of
reason.

Corollary to this fact, we cannot agree with the view of the Court of Appeals that since the ACR presented by the
petitioners are no longer valid on account of the new requirement to present an E-series ACR, they are deemed not properly
documented.[70] On the contrary, petitioners should not be expected to secure E-series ACR because it would be inconsistent
with the election of citizenship and its constructive registration through their acts made public, among others, their exercise
of suffrage, election as public official, and continued and uninterrupted stay in the Philippines since birth. The failure to
register as aliens is, obviously, consistent with petitioners’ election of Philippine citizenship.

The leanings towards recognition of the citizenship of children of Filipino mothers have been indicated not alone by
the jurisprudence that liberalized the requirement on time of election, and recognized positive acts of Philippine citizenship.

The favor that is given to such children is likewise evident in the evolution of the constitutional provision on Philippine
citizenship.

Thus, while the 1935 Constitution requires that children of Filipino mothers elect Philippine citizenship upon reaching
their age of majority,[71] upon the effectivity of the 1973 Constitution, they automatically become Filipinos[72] and need not
elect Philippine citizenship upon reaching the age of majority. The 1973 provision reads:

Section 1. The following are citizens of the Philippines:

(1) xxx.
(2) Those whose fathers and mothers are citizens of the Philippines.[73]

Better than the relaxation of the requirement, the 1987 Constitution now classifies them as natural-born citizens
upon election of Philippine citizenship. Thus, Sec. 2, Article IV thereof provides:

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof[74] shall be deemed natural-born
citizens. (Emphasis supplied.)

The constitutional bias is reflected in the deliberations of the 1986 Constitutional Commission.

MR. CONCEPCION. x x x.

xxxx

x x x x As regards those born of Filipino mothers, the 1935 Constitution merely gave them the option to
choose Philippine citizenship upon reaching the age of majority, even, apparently, if the father were an alien
or unknown. Upon the other hand, under the 1973 Constitution, children of mixed marriages involving an
alien father and a Filipino mother are Filipino citizens, thus liberalizing the counterpart provision in the 1935
Constitution by dispensing with the need to make a declaration of intention upon reaching the age of
majority. I understand that the committee would further liberalize this provision of the 1935
 Constitution. The Committee seemingly proposes to further liberalize the policy of the 1935 Constitution by
making those who became citizens of the Philippines through a declaration of intention to choose their
mother’s citizenship upon reaching the majority age by declaring that such children are natural-born citizens
of the Philippines.[75]

xxxx

xxx Why does the draft resolution adopt the provision of the 1973 Constitution and not that of the 1935? [76]

xxxx

FR. BERNAS. x x x Precisely, the reason behind the modification of the 1935 rule on citizenship was a
recognition of the fact that it reflected a certain male chauvinism, and it was for the purpose of remedying
that this proposed provision was put in. The idea was that we should not penalize the mother of a child
simply because she fell in love with a foreigner. Now, the question on what citizenship the child would prefer
arises. We really have no way of guessing the preference of the infant. But if we recognize the right of the
child to choose, then let him choose when he reaches the age of majority. I think dual citizenship is just a
reality imposed on us because we have no control of the laws on citizenship of other countries. We
recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is
something completely beyond our control. But certainly it is within the jurisdiction of the Philippine
government to require that [at] a certain point, a child be made to choose. But I do not think we should
penalize the child before he is even able to choose. I would, therefore, support the retention of the
modification made in 1973 of the male chauvinistic rule of the 1935 Constitution.[77]

xxxx

MR. REGALADO. With respect to a child who became a Filipino citizen by election, which the Committee is
now planning to consider a natural-born citizen, he will be so the moment he opts for Philippine
citizenship. Did the Committee take into account the fact that at the time of birth, all he had was just an
inchoate right to choose Philippine citizenship, and yet, by subsequently choosing Philippine citizenship, it
would appear that his choice retroacted to the date of his birth so much so that under the Gentleman’s
proposed amendment, he would be a natural-born citizen?[78]

FR. BERNAS. But the difference between him and the natural-born who lost his status is that the natural-
born who lost his status, lost it voluntarily; whereas, this individual in the situation contemplated in Section 1,
paragraph 3 never had the chance to choose.[79]

xxxx

[on the period within which to elect Philippine citizenship]

MR. RODRIGO. [T]his provision becomes very, very important because his election of Philippine citizenship
makes him not only a Filipino citizen but a natural-born Filipino citizen, entitling him to run for Congress, to be a
Justice of the Supreme Court x x x.[80]

We are guided by this evolvement from election of Philippine citizenship upon reaching the age of majority under the
1935 Philippine Constitution to dispensing with the election requirement under the 1973 Philippine Constitution to express
classification of these children as natural-born citizens under the 1987 Constitution towards the conclusion that the omission
of the 1941 statutory requirement of registration of the documents of election should not result in the obliteration of the right
to Philippine citizenship.

Having a Filipino mother is permanent. It is the basis of the right of the petitioners to elect Philippine
citizenship. Petitioners elected Philippine citizenship in form and substance. The failure to register the election in the civil
registry should not defeat the election and resultingly negate the permanent fact that they have a Filipino mother. The
lacking requirements may still be complied with subject to the imposition of appropriate administrative penalties, if any. The
documents they submitted supporting their allegations that they have already registered with the civil registry, although
belatedly, should be examined for validation purposes by the appropriate agency, in this case, the Bureau of
Immigration. Other requirements embodied in the administrative orders and other issuances of the Bureau of Immigration
and the Department of Justice shall be complied with within a reasonable time.

WHEREFORE, the Decision dated 29 August 2007, and the Resolution dated 29 May 2008 of the Court of Appeals
in CA-G.R. SP No. 89532 affirming the Judgment dated 2 February 2005, and the Resolution dated 8 April 2005 of the Bureau
of Immigration in BSI-D.C. No. AFF-04-574 OC-STF-04-09/23-1416 are hereby SET ASIDE with respect to petitioners Balgamelo
Cabiling Ma, Felix Cabiling Ma, Jr., and Valeriano Cabiling Ma. Petitioners are given ninety (90) days from notice within which
toCOMPLY with the requirements of the Bureau of Immigration embodied in its Judgment of 2 February 2005. The Bureau of
Immigration shall ENSURE that all requirements, including the payment of their financial obligations to the state, if any, have
been complied with subject to the imposition of appropriate administrative fines; REVIEW the documents submitted by the
petitioners; and ACT thereon in accordance with the decision of this Court.

SO ORDERED.
 THIRD DIVISION
G.R. NO. 197450 : March 20, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner, v. LI CHING CHUNG, a.k.a. BERNABE LUNA LI, a.k.a. STEPHEN LEE
KENG, Respondent.
DECISION
MENDOZA, J.:
This Petition for Review on Certiorari1 under Rule 45 of the 1997 Rules of Civil Procedure filed by the Republic of the
Philippines, represented by the Office of the Solicitor General (OSG), challenges the June 30, 2011 Decision2 of the Court of
Appea1s (CA) in CA-G.R. CV No. 93374, which affirmed the June 3, 2009 Decision3 of the Regional Trial Court, Branch 49,
Manila (RTC), granting the petition for naturalization of respondent Li Ching Chung (respondent).
On August 22, 2007, respondent, otherwise known as Bernabe Luna Li or Stephen Lee Keng, a Chinese national, filed his
Declaration of Intention to Become a Citizen of the Philippines before the OSG.4chanroblesvirtualawlibrary
On March 12, 2008 or almost seven months after filing his declaration of intention, respondent filed his Petition for
Naturalization before the RTC, docketed as Civil Case No. 08-118905.5 On April 5, 2008, respondent filed his Amended Petition
for Naturalization,6 wherein he alleged that he was born on November 29, 1963 in Fujian Province, People's Republic of China,
which granted the same privilege of naturalization to Filipinos; that he came to the Philippines on March 15, 1988 via
Philippine Airlines Flight PR 311 landing at the Ninoy Aquino International Airport; that on November 19, 1989, he married
Cindy Sze Mei Ngar, a British national, with whom he had four (4) children, all born in Manila; that he had been continuously
and permanently residing in the country since his arrival and is currently a resident of Manila with prior residence in Malabon;
that he could speak and write in English and Tagalog; that he was entitled to the benefit of Section 3 of Commonwealth Act
(CA) No. 473 reducing to five (5) years the requirement under Section 2 of ten years of continuous residence, because he
knew English and Filipino having obtained his education from St. Stephen's High School of Manila; and that he had successfully
established a trading general merchandise business operating under the name of "VS Marketing Corporation."7 As an
entrepreneur, he derives income more than sufficient to be able to buy a condominium unit and vehicles, send his children to
private schools and adequately provide for his family.8chanroblesvirtualawlibrary
In support of his application, he attached his barangay certificate,9 police clearance,10 alien certification of
registration,11 immigration certificate of residence,12 marriage contract,13authenticated birth certificates of his
children,14 affidavits of his character witnesses,15 passport,162006 annual income tax return,17 declaration of intention to
become a citizen of the Philippines18and a certification19 from the Bureau of Immigration with a list of his travel records from
January 30, 1994.20chanroblesvirtualawlibrary
Consequently, the petition was set for initial hearing on April 3, 2009 and its notice21 was posted in a conspicuous place at the
Manila City Hall and was published in the Official Gazette on June 30, 2008,22 July 7, 200823 and July 14, 2008,24 and in the
Manila Times,25 a newspaper of general circulation, on May 30, 2008,26 June 6, 200827 and June 13,
2008.28chanroblesvirtualawlibrary
Thereafter, respondent filed the Motion for Early Setting29 praying that the hearing be moved from April 3, 2009 to July 31,
2008 so he could acquire real estate properties. The OSG filed its Opposition,30 dated August 6, 2008, arguing that the said
motion for early setting was a "clear violation of Section 1, RA 530, which provides that hearing on the petition should be held
not earlier than six (6) months from the date of last publication of the notice."31 The opposition was already late as the RTC, in
its July 31, 2008 Order,32 denied respondent's motion and decreed that since the last publication in the newspaper of general
circulation was on June 13, 2008, the earliest setting could only be scheduled six (6) months later or on December 15, 2008.
On December 15, 2008, the OSG reiterated, in open court, its opposition to the early setting of the hearing and other grounds
that would merit the dismissal of the petition. Accordingly, the RTC ordered the suspension of the judicial proceedings until all
the requirements of the statute of limitation would be completed.33chanroblesvirtualawlibrary
The OSG filed a motion to dismiss,34 but the RTC denied the same in its Order,35 dated March 10, 2009, and reinstated the
original hearing date on April 3, 2009, as previously indicated in the notice.
Thereafter, respondent testified and presented two character witnesses, Emelita V. Roleda and Gaudencio Abalayan
Manimtim, who personally knew him since 1984 and 1998, respectively, to vouch that he was a person of good moral
character and had conducted himself in a proper and irreproachable manner during his period of residency in the country.
On June 3, 2009, the RTC granted respondent's application for naturalization as a Filipino citizen.36chanroblesvirtualawlibrary
The decretal portion reads:chanroblesvirtualawlibrary
WHEREFORE, petitioner LI CHING CHUNG a.k.a. BERNABE LUNA LI a.k.a STEPHEN LEE KENG is hereby declared a Filipino citizen
by naturalization and admitted as such.
However, pursuant to Section 1 of Republic Act No. 530, this Decision shall not become executory until after two (2) years
from its promulgation and after the Court, on proper hearing, with the attendance of the Solicitor General or his
representative, is satisfied, and so finds, that during the intervening time the applicant has: (1) not left the Philippines; (2) has
dedicated himself continuously to a lawful calling or profession; (3) has not been convicted of any offense or violation of
Government promulgated rules; (4) or committed any act prejudicial to the interest of the nation or contrary to any
Government announced policies.
As soon as this decision shall have become executory, as provided under Section 1 of Republic Act No. 530, the Clerk of Court
of this Branch is hereby directed to issue to the Petitioner a Naturalization Certificate, after the Petitioner shall have
subscribed to an Oath, in accordance with Section 12 of Commonwealth Act No. 472, as amended.
The Local Civil Registrar of the City of Manila is, likewise directed to register the Naturalization Certificate in the proper Civil
Registry.
SO ORDERED.37chanroblesvirtualawlibrary
The OSG appealed the RTC decision to the CA.38chanroblesvirtualawlibrary
On June 30, 2011, the CA affirmed the RTC decision.39 The CA held that although the petition for naturalization was filed less
than one (1) year from the time of the declaration of intent before the OSG, this defect was not fatal. Moreover, contrary to
the allegation of the OSG that respondent did not present his Certificate of Arrival, the fact of his arrival could be easily
confirmed from the Certification, dated August 21, 2007, issued by the Bureau of Immigration, and from the stamp in the
passport of respondent indicating his arrival on January 26, 1981.40 The CA further stated that "the Republic participated in
every stage of the proceedings below. It was accorded due process which it vigorously exercised from beginning to end.
Whatever procedural defects, if at all they existed, did not taint the proceedings, let alone the Republic's meaningful exercise
of its right to due process."41chanroblesvirtualawlibrary
Moreover, the CA noted that the OSG did not in any way question respondent's qualifications and his lack of disqualifications
to be admitted as citizen of this country. Indeed, the CA was convinced that respondent was truly deserving of this
privilege.42chanroblesvirtualawlibrary
Hence, this petition.43chanroblesvirtualawlibrary
To bolster its claim for the reversal of the assailed ruling, the OSG advances this pivotal issue of
x x x whether the respondent should be admitted as a Filipino citizen despite his undisputed failure to comply with the
requirements provided for in CA No. 473, as amended which are mandatory and jurisdictional in character particularly: (i) the
filing of his petition for naturalization within the one (1) year proscribed period from the date he filed his declaration of
intention to become a Filipino citizen; (ii) the failure to attach to the petition his certificate of arrival; and (iii) the failure to
comply with the publication and posting requirements prescribed by CA No. 473.44chanroblesvirtualawlibrary
The OSG argues that "the petition for naturalization should not be granted in view of its patent jurisdictional infirmities,
particularly because: 1) it was filed within the one (1) year proscribed period from the filing of declaration of intention; 2) no
certificate of arrival, which is indispensable to the validity of the Declaration of Intention, was attached to the petition; and 3)
respondent's failure to comply with the publication and posting requirements set under CA 473."45 In particular, the OSG
points out that the publication and posting requirements were not strictly followed, specifically citing that: "(a) the hearing of
the petition on 15 December 2008 was set ahead of the scheduled date of hearing on 3 April 2009; (b) the order moving the
date of hearing (Order dated 31 July 2008) was not published; and, (c) the petition was heard within six (6) months (15
December 2008) from the last publication (on 14 July 2008)."46chanroblesvirtualawlibrary
The petition is meritorious.
Section 5 of CA No. 473,47 as amended,48 expressly states:chanroblesvirtualawlibrary
Section 5. Declaration of intention. One year prior to the filing of his petition for admission to Philippine citizenship, the
applicant for Philippine citizenship shall file with the Bureau of Justice (now Office of the Solicitor General) a declaration under
oath that it is bona fide his intention to become a citizen of the Philippines. Such declaration shall set forth name, age,
occupation, personal description, place of birth, last foreign residence and allegiance, the date of arrival, the name of the
vessel or aircraft, if any, in which he came to the Philippines, and the place of residence in the Philippines at the time of
making the declaration. No declaration shall be valid until lawful entry for permanent residence has been established and a
certificate showing the date, place, and manner of his arrival has been issued. The declarant must also state that he has
enrolled his minor children, if any, in any of the public schools or private schools recognized by the Office of Private Education
of the Philippines, where Philippine history, government, and civics are taught or prescribed as part of the school curriculum,
during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen. Each declarant must furnish two photographs of himself. (Emphasis supplied)
As held in Tan v. Republic,49 "the period of one year required therein is the time fixed for the State to make inquiries as to the
qualifications of the applicant. If this period of time is not given to it, the State will have no sufficient opportunity to
investigate the qualifications of the applicants and gather evidence thereon. An applicant may then impose upon the courts,
as the State would have no opportunity to gather evidence that it may present to contradict whatever evidence that the
applicant may adduce on behalf of his petition." The period is designed to give the government ample time to screen and
examine the qualifications of an applicant and to measure the latter's good intention and sincerity of purpose.50 Stated
otherwise, the waiting period will unmask the true intentions of those who seek Philippine citizenship for selfish reasons
alone, such as, but not limited to, those who are merely interested in protecting their wealth, as distinguished from those who
have truly come to love the Philippines and its culture and who wish to become genuine partners in nation building.
The law is explicit that the declaration of intention must be filed one year prior to the filing of the petition for naturalization.
Republic v. Go Bon Lee51 likewise decreed that substantial compliance with the requirement is inadequate. In that case, Go
filed his declaration of intention to become a citizen of the Philippines on May 23, 1940. After eleven months, he filed his
petition for naturalization on April 18, 1941. In denying his petition, the Court wrote:chanroblesvirtualawlibrary
The language of the law on the matter being express and explicit, it is beyond the province of the courts to take into account
questions of expediency, good faith and other similar reasons in the construction of its provisions (De los Santos vs. Mallare,
87 Phil., 289; 48 Off. Gaz., 1787). Were we to accept the view of the lower court on this matter, there would be no good
reason why a petition for naturalization cannot be filed one week after or simultaneously with the filing of the required
declaration of intention as long as the hearing is delayed to a date after the expiration of the period of one year. The ruling of
the lower court amounts, in our opinion, to a substantial change in the law, something which courts can not do, their duty
being to apply the law and not tamper with it.52chanroblesvirtualawlibrary
The only exception to the mandatory filing of a declaration of intention is specifically stated in Section 6 of CA No. 473, to
wit:chanroblesvirtualawlibrary
Section 6. Persons exempt from requirement to make a declaration of intention. Persons born in the Philippines and have
received their primary and secondary education in public schools or those recognized by the Government and not limited to
any race or nationality, and those who have resided continuously in the Philippines for a period of thirty years or more before
filing their application, may be naturalized without having to make a declaration of intention upon complying with the other
requirements of this Act. To such requirements shall be added that which establishes that the applicant has given primary and
secondary education to all his children in the public schools or in private schools recognized by the Government and not
limited to any race or nationality. The same shall be understood applicable with respect to the widow and minor children of an
alien who has declared his intention to become a citizen of the Philippines, and dies before he is actually naturalized.
(Emphases supplied)
Unquestionably, respondent does not fall into the category of such exempt individuals that would excuse him from filing a
declaration of intention one year prior to the filing of a petition for naturalization. Contrary to the CA finding, respondent's
premature filing of his petition for naturalization before the expiration of the one-year period is
fatal.53chanroblesvirtualawlibrary
Consequently, the citation of the CA of the ruling in Tam Tan v. Republic54 is misplaced. In that case, the Court did not excuse
the non-compliance with the one-year period, but reiterated that the waiting period of one (1) year is mandatory. In reversing
the grant of naturalization to Tam Tan, the Court wrote:chanroblesvirtualawlibrary
The appeal is predicated on the fact that the petition for naturalization was filed (26 October 1950) before the lapse of one
year from and after the filing of a verified declaration of his bona fide intention to become a citizen (4 April 1950), in violation
of Section 5 of Commonwealth Act No. 473, as amended.
The position of the Government is well taken, because no petition for naturalization may be filed and heard and hence no
decree may be issued granting it under the provisions of Commonwealth Act No. 473, as amended, before the expiration of
one year from and after the date of the filing of a verified declaration of his bona fide intention to become a citizen of the
Philippines. This is mandatory.55Failure to raise in the lower court the question of non-compliance therewith does not
preclude the Government from raising it on appeal.56chanroblesvirtualawlibrary
Nevertheless, after the one-year period, the applicant may renew his petition for naturalization and the evidence already
taken or heard may be offered anew without the necessity of bringing to court the witnesses who had testified. And the
Government may introduce evidence in support of its position.57chanroblesvirtualawlibrary
The decree granting the petition for naturalization is set aside, without costs.
In naturalization proceedings, the burden of proof is upon the applicant to show full and complete compliance with the
requirements of the law.58 The opportunity of a foreigner to become a citizen by naturalization is a mere matter of grace,
favor or privilege extended to him by the State; the applicant does not possess any natural, inherent, existing or vested right
to be admitted to Philippine citizenship. The only right that a foreigner has, to be given the chance to become a Filipino
citizen, is that which the statute confers upon him; and to acquire such right, he must strictly comply with all the statutory
conditions and requirements.59 The absence of one jurisdictional requirement is fatal to the petition as this necessarily results
in the dismissal or severance of the naturalization process.
Hence, all other issues need not be discussed further as respondent failed to strictly follow the requirement mandated by the
statute.
It should be emphasized that "a naturalization proceeding is so infused with public interest that it has been differently
categorized and given special treatment. x x x Unlike in ordinary judicial contest, the granting of a petition for naturalization
does not preclude the reopening of that case and giving the government another opportunity to present new evidence. A
decision or order granting citizenship will not even constitute res judicata to any matter or reason supporting a subsequent
judgment cancelling the certification of naturalization already granted, on the ground that it had been illegally or fraudulently
procured. For the same reason, issues even if not raised in the lower court may be entertained on appeal. As the matters
brought to the attention of this Court x x x involve facts contained in the disputed decision of the lower court and admitted by
the parties in their pleadings, the present proceeding may be considered adequate for the purpose of determining the
correctness or incorrectness of said decision, in the light of the law and extant jurisprudence."60chanroblesvirtualawlibrary
Ultimately, respondent failed to prove full and complete compliance with the requirements of the Naturalization Law. As such,
his petition for naturalization must be denied without prejudice to his right to re-file his application.
WHEREFORE, the petition is GRANTED. The June 30, 2011 Decision of the Court of Appeals in CA-G.R. CV No. 93374 is
REVERSED and SET ASIDE. The petition for naturalization of respondent Li Ching Chung, otherwise known as Bernabe Luna Li
or Stephen Lee Keng, docketed as Civil Case No. 08-118905 before the Regional Trial Court, Branch 49, Manila, is DISMISSED,
without prejudice.
SO ORDERED.
 EN BANC
G.R. NO. 195649 : April 16, 2013
CASAN MACODE MAQUILING, Petitioner, v. COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.
DECISION
SERENO, C.J.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of the
Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First Division dated 5 October
201 0 is being assailed for applying Section 44 of the Local Government Code while the Resolution2 of the COMELEC En Banc
dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado)
is solely a Filipino citizen qualified to run for public office despite his continued use of a U.S. passport.
FACTS
3
Respondent Arnado is a natural born Filipino citizen. However, as a consequence of his subsequent naturalization as a citizen
of the United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No.
9225 before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of
the Philippines on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was
issued in his favor.5chanroblesvirtualawlibrary
The aforementioned Oath of Allegiance states:chanroblesvirtualawlibrary
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines
and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I hereby declare
that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and
that I impose this obligation upon myself voluntarily without mental reservation or purpose of
evasion.6chanroblesvirtualawlibrary
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his
foreign citizenship, which states:chanroblesvirtualawlibrary
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the
UNITED STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political rights and
privileges of the United States of America.
I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and
belief.7chanroblesvirtualawlibrary
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which contains,
among others, the following statements:chanroblesvirtualawlibrary
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance
thereto. I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8chanroblesvirtualawlibrary
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or
to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010
local and national elections.9chanroblesvirtualawlibrary
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching
thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-
American."10To further bolster his claim of Arnado's US citizenship, Balua presented in his Memorandum a computer-
generated travel record11dated 03 December 2009 indicating that Arnado has been using his US Passport No. 057782700 in
entering and departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and returned on
25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name
"Arnado, Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April
2010, with the following pertinent travel records:chanroblesvirtualawlibrary
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012chanroblesvirtualawlibrary
On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to personally file his answer and
memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number of
votes and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as
evidence:14chanroblesvirtualawlibrary
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009;cralawlibrary
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors
of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously
residing in his family's ancestral house in Kauswagan;cralawlibrary
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that Arnado
is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the
Philippines in 2009;cralawlibrary
4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr.
Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to 15 April
1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of
Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation,15 the
COMELEC First Division considered it as one for disqualification. Balua's contention that Arnado is a resident of the United
States was dismissed upon the finding that "Balua failed to present any evidence to support his contention,"16 whereas the
First Division still could "not conclude that Arnado failed to meet the one-year residency requirement under the Local
Government Code."17chanroblesvirtualawlibrary
In the matter of the issue of citizenship, however, the First Division disagreed with Arnado's claim that he is a Filipino
citizen.18chanroblesvirtualawlibrary
We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnado's act of
consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit of
Renunciation.
xxx
Arnado's continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US
citizenship and that he only executed an Affidavit of Renunciation to enable him to run for office. We cannot turn a blind eye
to the glaring inconsistency between Arnado's unexplained use of a US passport six times and his claim that he re-acquired his
Philippine citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined
as an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries."
Surely, one who truly divested himself of US citizenship would not continue to avail of privileges reserved solely for US
nationals.19chanroblesvirtualawlibrary
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:chanroblesvirtualawlibrary
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of Rommel
C. Arnado is hereby GRANTED. Rommel C. Arnado's proclamation as the winning candidate for Municipal Mayor of
Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of succession under Section 44 of the Local Government Code
of 1991 take effect.20chanroblesvirtualawlibrary
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the evidence is insufficient
to justify the Resolution and that the said Resolution is contrary to law."21 He raised the following
contentions:22chanroblesvirtualawlibrary
1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the
Affidavit of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225;cralawlibrary
2. The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a repudiation of
his Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the Philippines;cralawlibrary
3. He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he used his
Philippine passport after he obtained it;cralawlibrary
4. Balua's petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Division's treatment of
the petition as one for disqualification constitutes grave abuse of discretion amounting to excess of
jurisdiction;23chanroblesvirtualawlibrary
5. He is undoubtedly the people's choice as indicated by his winning the elections;cralawlibrary
6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and
7. The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed within
ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second
highest number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a Motion for
Reconsideration together with an Opposition to Arnado's Amended Motion for Reconsideration. Maquiling argued that while
the First Division correctly disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not
applicable in this case. Consequently, he claimed that the cancellation of Arnado's candidacy and the nullification of his
proclamation, Maquiling, as the legitimate candidate who obtained the highest number of lawful votes, should be proclaimed
as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration. Arnado
opposed all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been rendered,
and that as a second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted
by the final adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the
Commission "shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the
candidate whose qualifications for office is questioned."
As to Maquiling's intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in
proceedings for disqualification even after elections if no final judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive portion
of the Resolution of the First Division allowing the order of succession under Section 44 of the Local Government Code to take
effect.
The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and ruled that
the petition was filed well within the period prescribed by law,24having been filed on 28 April 2010, which is not later than 11
May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnado's Motion for
Reconsideration, on the following premises:chanroblesvirtualawlibrary
First:chanroblesvirtualawlibrary
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as though
he never became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a pure Philippine
Citizen again.
xxx
The use of a US passport does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law
saying such. More succinctly, the use of a US passport does not operate to "un-renounce" what he has earlier on renounced.
The First Division's reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is
misplaced. The petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for
the renewal of his Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born, who
acquire their citizenship by choice, thus discarding their original citizenship. The Philippine State expects strict conduct of
allegiance to those who choose to be its citizens. In the present case, respondent is not a naturalized citizen but a natural born
citizen who chose greener pastures by working abroad and then decided to repatriate to supposedly help in the progress of
Kauswagan. He did not apply for a US passport after his renunciation. Thus the mentioned case is not on all fours with the
case at bar.
xxx
The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine
passport, the passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine
passport so that he was actually able to get it about three (3) months later. Yet as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondent's submission of a certified true copy of his passport showing that he used the same for his travels on the following
dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010. This then shows
that the use of the US passport was because to his knowledge, his Philippine passport was not yet issued to him for his use. As
probably pressing needs might be undertaken, the respondent used whatever is within his control during that
time.25chanroblesvirtualawlibrary
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one of the
grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said
principle, once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be a
citizen, and this assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case
respondent after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of his
American passport in the absence of clear, unequivocal and competent proof of expatriation. Accordingly, all doubts should
be resolved in favor of retention of citizenship."26chanroblesvirtualawlibrary
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:chanroblesvirtualawlibrary
Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The
latter's continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous renunciation of
the afore-mentioned citizenship runs contrary to his declaration that he chose to retain only his Philippine citizenship.
Respondent's submission with the twin requirements was obviously only for the purpose of complying with the requirements
for running for the mayoralty post in connection with the May 10, 2010 Automated National and Local Elections.
Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his
incumbency, title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he lost
his citizenship after his election to office, he is disqualified to serve as such. Neither does the fact that respondent obtained
the plurality of votes for the mayoralty post cure the latter's failure to comply with the qualification requirements regarding
his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of votes
does not validate his election. It has been held that where a petition for disqualification was filed before election against a
candidate but was adversely resolved against him after election, his having obtained the highest number of votes did not
make his election valid. His ouster from office does not violate the principle of vox populi suprema est lex because the
application of the constitutional and statutory provisions on disqualification is not a matter of popularity. To apply it is to
breath[e] life to the sovereign will of the people who expressed it when they ratified the Constitution and when they elected
their representatives who enacted the law.27chanroblesvirtualawlibrary
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his
continued use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in
Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado is a
Filipino citizen despite his continued use of a US passport, Maquiling now seeks to reverse the finding of the COMELEC En
Banc that Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division's disqualification of Arnado,
Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the COMELEC
committed reversible error in ruling that "the succession of the vice mayor in case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent
questions hinge on the result of the first.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a
renunciation earlier made.
A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign
citizenship affects one's qualifications to run for public office.
The third question is whether or not the rule on succession in the Local Government Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of
the First Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number of
votes, Maquiling contends that he has an interest in the disqualification case filed against Arnado, considering that in the
event the latter is disqualified, the votes cast for him should be considered stray and the second-placer should be proclaimed
as the winner in the elections.
It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of
candidacy and / or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition as one
for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:chanroblesvirtualawlibrary
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong.
Mercado v. Manzano28chanroblesvirtualawlibrary
clarified the right of intervention in a disqualification case. In that case, the Court said:chanroblesvirtualawlibrary
That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is
clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate
who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this
provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final
judgment rendered.29chanroblesvirtualawlibrary
Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that
Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC30 are
present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate
the matter before this Court.
Arnado's claim that the main case has attained finality as the original petitioner and respondents therein have not appealed
the decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor prevents it from
attaining finality. It is only after this Court has ruled upon the issues raised in this instant petition that the disqualification case
originally filed by Balua against Arnado will attain finality.
The use of foreign passport after renouncing one's foreign citizenship is a positive and voluntary act of representation as to
one's nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:chanroblesvirtualawlibrary
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the following
conditions:chanroblesvirtualawlibrary
xxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign before any public officer authorized to administer an oath.
x x x31chanroblesvirtualawlibrary
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced
his foreign citizenship. There is no question that after performing these twin requirements required under Section 5(2) of R.A.
No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for
repatriation before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous
with the execution of his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his
Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual
citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of
Renunciation, thus completing the requirements for eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such
renunciation under the laws of the foreign country.32chanroblesvirtualawlibrary
However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign
citizenship, the citizen performs positive acts showing his continued possession of a foreign
citizenship.33chanroblesvirtualawlibrary
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to
use his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The
pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of
candidacy, thereby rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he
used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his
foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration
authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United
States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the
next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:chanroblesvirtualawlibrary
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust,
there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings.
In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that, after taking his
oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents
executed abroad that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine
citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine
citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting
renunciation and loss of Philippine citizenship,35 it is nevertheless an act which repudiates the very oath of renunciation
required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he
recanted his Oath of Renunciation36 that he "absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED
STATES OF AMERICA"37 and that he "divest(s) himself of full employment of all civil and political rights and privileges of the
United States of America."38chanroblesvirtualawlibrary
We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino
citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily
and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one's foreign citizenship is fatal to Arnado's bid for public office, as it
effectively imposed on him a disqualification to run for an elective local position.
Arnado's category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the
oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign
citizenship.39 Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the
Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public
office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and
privileges of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section
40(d) of the Local Government Code,40 he was not qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April
2009, on which date he first used his American passport after renouncing his American citizenship.
This Court has previously ruled that:chanroblesvirtualawlibrary
Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title
may be seasonably challenged. x x x.41chanroblesvirtualawlibrary
The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship
issue to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnado's act of consistently using his US passport
effectively negated his "Affidavit of Renunciation."42 This does not mean, that he failed to comply with the twin requirements
under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively disqualified him from running
for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be
thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents
himself as a foreign citizen, to hold any public office.
Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his
Philippine passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3) months
later.43chanroblesvirtualawlibrary
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a Filipino
citizen and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport after his
renunciation does not make his use of a US passport less of an act that violated the Oath of Renunciation he took. It was still a
positive act of representation as a US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad."44 We cannot agree with the COMELEC. Three months
from June is September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he would not
have used his US passport on 24 November 2009.
Besides, Arnado's subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign
citizenship and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign
passport does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use
of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded
by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one's flag and country. While
those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to
public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office
demands full and undivided allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same
Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only
from holding the public office but even from becoming a candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential spring of the principle that a
second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its
soundness once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible
candidate cannot be proclaimed as the winner in the elections.
The Facts of the case are as follows:chanroblesvirtualawlibrary
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal president.
The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office. Topacio received
430 votes, and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in that he was
reelected the second time to the office of the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46chanroblesvirtualawlibrary
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a second re-election
absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast
ballots."47chanroblesvirtualawlibrary
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the effect of a decision that a
candidate is not entitled to the office because of fraud or irregularities in the elections x x x with that produced by declaring a
person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and contrast between the two situations,
thus:chanroblesvirtualawlibrary
Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is
quite different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after
an examination of the ballots may find that some other person than the candidate declared to have received a plurality by the
board of canvassers actually received the greater number of votes, in which case the court issues its mandamus to the board
of canvassers to correct the returns accordingly; or it may find that the manner of holding the election and the returns are so
tainted with fraud or illegality that it cannot be determined who received a plurality of the legally cast ballots. In the latter
case, no question as to the correctness of the returns or the manner of casting and counting the ballots is before the deciding
power, and generally the only result can be that the election fails entirely. In the former, we have a contest in the strict sense
of the word, because of the opposing parties are striving for supremacy. If it be found that the successful candidate (according
to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the
former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory
cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots. In the one case the question is as to who received a plurality of the legally cast
ballots; in the other, the question is confined to the personal character and circumstances of a single individual.48 (Emphasis
supplied)
Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly speaking, a contest" in
contrast to the earlier statement, "In the former, we have a contest in the strict sense of the word, because of the opposing
parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try
a disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its
jurisdiction being confined "to determine which of the contestants has been duly elected" the judge exceeded his jurisdiction
when he "declared that no one had been legally elected president of the municipality of Imus at the general election held in
that town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be elected and to hold
the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The
Court therein ruled:chanroblesvirtualawlibrary
For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring
in those proceedings that no one was elected municipal president of the municipality of Imus at the last general election; and
that said order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is
rendered on respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let
judgment be entered accordingly in 5 days, without costs. So ordered.49chanroblesvirtualawlibrary
On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere
pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent
statement, it is even illogical.
Let us examine the statement:chanroblesvirtualawlibrary
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question
is the eligibility of the one receiving a plurality of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and
ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next
highest number of votes as the winner and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not
even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening
circumstances, his ineligibility might not have been passed upon prior to election date. Consequently, he may have had the
opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the
outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his
qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor
cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates.
When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons
desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a
person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate
expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample
upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well
write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy
elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we
pronounced:chanroblesvirtualawlibrary
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting
public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be
erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly
believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is
lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country
only, abjuring and renouncing all fealty and fidelity to any other state.51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled that the ruling in Quizon and
Saya-ang cannot be interpreted without qualifications lest "Election victory x x x becomes a magic formula to bypass election
eligibility requirements."53chanroblesvirtualawlibrary
We have ruled in the past that a candidate's victory in the election may be considered a sufficient basis to rule in favor of the
candidate sought to be disqualified if the main issue involves defects in the candidate's certificate of candidacy. We said that
while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as
regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after
the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v.
COMELEC:chanroblesvirtualawlibrary
The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the
realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for
the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law
that effectively negates election requirements aimed at providing the electorate with the basic information to make an
informed choice about a candidate's eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic
qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets
out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to
cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state
the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect
that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility requirements. (Citations
omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and
employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and
win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and
disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the
rule of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on
qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are
disregarded and only the electorate's voice spoken through the ballot is made to matter in the end, it precisely serves as an
open invitation for electoral anarchy to set in.
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnado's disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes
from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot produce any
legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more
so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The
votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are
allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the
laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in
the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware within the realm of
notoriety of a candidate's disqualification and still cast their votes in favor said candidate, then the eligible candidate
obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated
the rules affecting qualified candidates who placed second to ineligible ones.
The electorate's awareness of the candidate's disqualification is not a prerequisite for the disqualification to attach to the
candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a
candidate's disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be
proclaimed as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates.
That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the
COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:chanroblesvirtualawlibrary
Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong.
There was no chance for Arnado's proclamation to be suspended under this rule because Arnado failed to file his answer to
the petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after he
was already proclaimed as the winner.
The disqualifying circumstance surrounding Arnado's candidacy involves his citizenship. It does not involve the commission of
election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to
disqualify the individual from continuing as a candidate, or if he has already been elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an
American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on
Section 40(d) of the Local Government Code.
Section 40 starts with the statement "The following persons are disqualified from running for any elective local position." The
prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as candidates in
the election.
With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the
beginning. It could not have produced any other legal effect except that Arnado rendered it impossible to effect his
disqualification prior to the elections because he filed his answer to the petition when the elections were conducted already
and he was already proclaimed the winner.
To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed
even prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although made long after
the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the
May 201 0 elections.
Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified
candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code
will not apply.
WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Bane dated 2 February 2011
is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local
elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in
the 10 May 2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties and the Commission on Elections.
No pronouncement as to costs.
SO ORDERED.
 EN BANC
[G.R. NO. 198742 - August 10, 2012]
TEODORA SOBEJANA-CONDON, Petitioner, v. COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and
WILMA P. PAGADUAN, Respondents.
DECISION
REYES, J.:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225
renders a dual citizen ineligible to run for and thus hold any elective public office.
The Case
At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify Resolution2 dated September
6, 2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed
the Order3 dated November 30, 2010 of COMELEC Second Division dismissing petitioner s appeal; and (b) affirmed the
consolidated Decision4dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring
petitioner Teodora Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984,
she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra,
Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of
2003."5 The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on
December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the
Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27,
2006 certifying that she has ceased to be an Australian citizen.6ςrνll
The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought
elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers
of votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M. Bautista,8(private respondents) all
registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioner s eligibility before the
RTC. The petitions similarly sought the petitioner s disqualification from holding her elective post on the ground that she is a
dual citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen.
She claimed that the Declaration of Renunciation of Australian Citizenshipshe executed in Australia sufficiently complied with
Section 5(2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner s failure to comply with Section
5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial,
the personal declaration of renunciation she filed in Australia was not under oath. The law clearly mandates that the
document containing the renunciation of foreign citizenship must be sworn before any public officer authorized to administer
oath. Consequently, the RTC s decision disposed as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST
(petitioner):ςrαlαω
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of Caba,
La Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; andcralawlibrary
3) DECLARING the position of Vice-Mayor in said municipality vacant.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
SO ORDERED.9ςrνll
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Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order10 dated November
30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was
reinstated by the COMELEC en banc in its Resolution11dated September 6, 2011. In the same issuance, the substantive merits
of the appeal were given due course. The COMELEC en banc concurred with the findings and conclusions of the RTC; it also
granted the Motion for Execution Pending Appeal filed by the private respondents.
The decretal portion of the resolution reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
WHEREFORE, premises considered the Commission RESOLVED as it herebyRESOLVES as follows:ςηαñrοblεš νιr†υαl
lαω lιbrαrÿ
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; andcralawlibrary
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.12 (Emphasis supplied)cralawlibrary
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Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.
The Petitioner s Arguments
The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual
citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the
"personal and sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking
elective office does not apply to her.
She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites
portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House
Bill (H.B.) No. 4720, the precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed
certificates of candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead
of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the
execution pending appeal of the RTC s judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after
ruling on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court
in an election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and
IV) For purposes of determining the petitioner s eligibility to run for public office, whether the "sworn renunciation of foreign
citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.
The Court s Ruling
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3,
Article IX-C of the Constitution, viz:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
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A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit:ςηαñrοblεš
νιr†υαl lαω lιbrαrÿ
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en
banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order.
chanrobles virtual law library
Considering that the above cited provisos do not set any limits to the COMELEC en banc s prerogative in resolving a motion for
reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after
ruling for its reinstatement instead of remanding the same to the division that initially dismissed it.
We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to
decide the substantive merits of the petitioner s appeal after ruling for its reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered
arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for
reconsideration attaching therewith supporting documents13 to her contention that she is no longer an Australian citizen. The
petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en banc s exercise of discretion on the
substantial merits of her appeal when she herself invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as
a precedent to the disposition of the petitioner s appeal. A decision or resolution of any adjudicating body can be disposed in
several ways. To sustain petitioner s argument would be virtually putting a straightjacket on the COMELEC en banc s
adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and
repugnant to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules
of Procedure.14ςrνll
II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioner s submission that the COMELEC en banc has no power to order the issuance of a writ of
execution and that such function belongs only to the court of origin.
There is no reason to dispute the COMELEC s authority to order discretionary execution of judgment in view of the fact that
the suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of
Procedure.15ςrνll
Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial
court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis-Ã -vis election cases when we held
that judgments in election cases which may be executed pending appeal includes those decided by trial courts and those
rendered by the COMELEC whether in the exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioner s eligibility to hold public
office.
The fact that the petitioner s qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010
elections cannot operate as an estoppel to the petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the
qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to
wit:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(1) Before election, pursuant to Section 78 thereof which provides that:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election; and
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(2) After election, pursuant to Section 253 thereof, viz:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa, regional,
provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (Emphasis
ours)
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Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five
(25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave
him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the
Omnibus Election Code.17ςrνll
The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus
Election Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their
Philippine citizenship18 by taking an oath of allegiance to the Republic, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of
the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the
Republic:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance
thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."
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Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain
their Philippine citizenship upon taking the aforesaid oath.
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The oath is an abbreviated repatriation process that restores one s Filipino citizenship and all civil and political rights and
obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz:ςηαñrοblεš νιr†υαl lαω
lιbrαrÿ
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy
full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines
and the following conditions:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required
by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines
and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to
the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit
to engage in such practice; andcralawlibrary
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to,
those who:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are
naturalized citizens. (Emphasis ours)
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Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took
an Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e.,
Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian
citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of
Section 5(2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn
renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the
intent of the Legislature. She anchors her submission on the statement made by Representative Javier during the floor
deliberations on H.B. No. 4720, the precursor of R.A. No. 9225.
At the outset, it bears stressing that the Court s duty to interpret the law according to its true intent is exercised only when
the law is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when
the law is clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for
application.19 Section 5(2) of R.A. No. 9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two
or more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible
meanings.20ςrνll
The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its categorical and single
meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she
personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also
expounded on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly
executed before an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that
affiant is renouncing all foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or retaining their Philippine
citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the
Philippines, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those
who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer
authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a
foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3
of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal
and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing
of their certificates of candidacy, to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other
than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the
Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House
Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon.
Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the
oath of allegiance is different from the renunciation of foreign citizenship;ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
xxx
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The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act
No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign
citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos
must only have one citizenship, namely, Philippine citizenship.23 (Citation omitted and italics and underlining ours)
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Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running for the position of vice-
mayor for his failure to make a personal and sworn renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The
language of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be
read literally.25 The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized
to administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a resort to the Journal of the
House of Representatives invoked by the petitioner leads to the same inference, viz:ςηαñrοblεš νιr†υαl lαω
lιbrαrÿ
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to
naturalized Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship
shall continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed
run for public office provided that they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of
foreign citizenship before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights
as Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their
other foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining
to the citizenship of any candidate. He subsequently cited the case of Afroyim v. Rusk, wherein the United States considered a
naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his
foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign
citizenship. He pointed out further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to
reacquire their Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will
also be considered qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their
foreign citizenship and that they comply with the residency and registration requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth
without having to perform an act to complete or perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said,
would help
Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he
explained that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides
for the accountability of public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro
forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and
who have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified
to run for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that
a natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect,
return to a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time
he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino
citizens by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not
considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign
citizenship. He said that they should be considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter s comments on the matter. He
however stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided
to revert back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign
citizenship but now wished to reacquire their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain
her repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of
Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered
natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to
another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to
regain their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this
will defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided
to regain their Filipino citizenship, will be considered as repatriated citizens.
Rep. Libanan cited the case of Bengzon v. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are
not considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935
Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of one s original nationality
and only naturalized citizens are not considered as natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino
citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the
matter.27ςrνll
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The petitioner obviously espouses an isolated reading of Representative Javier s statement; she conveniently disregards the
preceding and succeeding discussions in the records.
The above-quoted excerpts of the legislative record show that Representative Javier s statement ought to be understood
within the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino
citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for
government positions reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.
It was Representative Javier s position that they should be considered as repatriated Filipinos and not as natural-born citizens
since they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who
need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to
their original status as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that
natural-born citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that
the sworn renunciation of foreign citizenship be considered as a mere pro forma requirement.
Petitioner s argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal
requirement only with respect to the re-acquisition of one s status as a natural-born Filipino so as to override the effect of the
principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even
alluded to that, as the petitioner wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run
for public office has the option of executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on
public officers primary accountability of allegiance and loyalty, which provides:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or
employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall
be dealt with by law.
chanrobles virtual law library
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one s statement is true
or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or
the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is
false.28ςrνll
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public
officer s abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also
accommodate a mere qualified or temporary allegiance from government officers when the Constitution and the legislature
clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her
citizenship, is entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.29 To prove a foreign law,
the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of
Court which reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody
of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer
has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of
the embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis
ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the
evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as
the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of
a court having a seal, under the seal of such court.
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The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be
established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the
foreign law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time
material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law
of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of
practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied
of the authenticity of the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese
Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that law.30ςrνll
The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods. As uniformly observed
by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by
the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence,
the courts a quo acted judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the
photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia
attached to the petitioner s motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v.
Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other
citizenship.
This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the
wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the
application and operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to
require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic.32ςrνll
The petitioner s act of running for public office does not suffice to serve as an effective renunciation of her Australian
citizenship. While this Court has previously declared that the filing by a person with dual citizenship of a certificate of
candidacy is already considered a renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the
enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a personal and sworn
renunciation of foreign citizenship.34ςrνll
The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does
not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.35ςrνll
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to
execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies
to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual
citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The
petitioner's failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to
seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold
any elective office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the
Commission on Elections en bane in EAC (AE) No. A-44-2010 isAFFIRMED in toto.
SO ORDERED.
 FIRST DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 175430

Petitioner,
Present:

LEONARDO-DE CASTRO,*
Acting Chairperson,
- versus - BERSAMIN,
DEL CASTILLO,
VILLARAMA, JR., and
PERLAS-BERNABE,** JJ.

KERRY LAO ONG, Promulgated:

Respondent. June 18, 2012
x---------- ----------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

Naturalization laws are strictly construed in the government’s favor and against the applicant.[1] The applicant carries the burden
of proving his full compliance with the requirements of law.[2]

Before the Court is the Republic’s appeal of the appellate court’s Decision[3] dated May 13, 2006 in CA-G.R. CV No. 74794, which
affirmed the trial court’s grant of citizenship to respondent Kerry Lao Ong (Ong). The Court of Appeals (CA) held:

With all the foregoing, We find no cogent reason to reverse the decision of the court a quo.
WHEREFORE, the decision of the Regional Trial Court of Cebu City, 7th Judicial Region, Branch 9 in its Decision
dated November 23, 2001, is AFFIRMED in toto and the instant appeal is DISMISSED.

SO ORDERED.[4]

Factual Antecedents

On November 26, 1996, respondent Ong, then 38 years old,[5] filed a Petition for Naturalization.[6] The case was docketed as Nat.
Case No. 930 and assigned to Branch 9 of the Regional Trial Court of Cebu City. As decreed by Commonwealth Act No. 473, as amended by
Republic Act No. 530, known as the Revised Naturalization Law,[7] the petition was published in the Official Gazette[8] and a newspaper of
general circulation,[9] and posted in a public place for three consecutive weeks,[10] six months before the initial hearing.[11] The Office of the
Solicitor General entered its appearance and authorized[12] the city prosecutor to appear on its behalf.[13] Accordingly, Fiscals Ester Veloso
and Perla Centino participated in the proceedings below.
Respondent Ong was born at the Cebu General Hospital in Cebu City to Chinese citizens Siao Hwa Uy Ong and Flora Ong on March 4,
1958.[14] He is registered as a resident alien and possesses an alien certificate of registration[15] and a native-born certificate of
residence[16] from the Bureau of Immigration. He has been continuously and permanently residing[17] in the Philippines from birth up to the
present.[18] Ong can speak[19] and write in Tagalog, English, Cebuano, and Amoy.[20] He took his elementary[21] and high school[22]studies at
the Sacred Heart School for Boys in Cebu City, where social studies, Pilipino, religion, and the Philippine Constitution are taught. He then
obtained a degree in Bachelor of Science in Management from the Ateneo De Manila University on March 18, 1978.[23]

On February 1, 1981, he married Griselda S. Yap, also a Chinese citizen.[24] They have four children,[25] namely, Kerri Gail (born on
April 15, 1983),[26] Kimberley Grace (born on May 15, 1984),[27] Kyle Gervin (born on November 4, 1986),[28] and Kevin Griffith (born on
August 21, 1993),[29] who were all born and
raised in the Philippines. The children of school age were enrolled[30] at the Sacred Heart School for Boys[31] and Sacred Heart School for
Girls.[32] At the time of the filing of the petition, Ong, his wife, and children were living at No. 55 Eagle Street, Sto. Niño Village,
Banilad, CebuCity.

Ong has lived at the following addresses:[33]

1. Manalili Street, Cebu City (when Ong was in Grade 2)[34]

2. Crystal Compound Guadalupe, Cebu City (until 1970)[35]
3. No. 671 A.S. Fortuna Street, Cebu City (until 1992)[36]
 4. No. 55 Eagle Street, Sto. Niño Village, Banilad, Cebu City (until 1998);[37] and
5. No. 50 Roselle Street, North Town Homes, Nasipit, Talamban, Cebu City (present).[38]

Ong alleged in his petition that he has been a “businessman/business manager” since 1989, earning an average annual income
ofP150,000.00.[39] When he testified, however, he said that he has been a businessman since he graduated from college
in 1978.[40] Moreover, Ong did not specify or describe the nature of his business. [41]
As proof of his income, Ong presented four tax returns for the years 1994 to 1997.[42] Based on these returns, Ong’s gross annual
income was P60,000.00 for 1994; P118,000.00 for 1995; P118,000.00 for 1996; and P128,000.00 for 1997.

Respondent further testified that he socializes[43] with Filipinos; celebrates the Sinulog, fiestas, birthdays, and Christmas.[44] He is a
member of the Alert/ React VII Communications Group and the Masonic organization.[45]

Respondent Ong presented a health certificate to prove[46] that he is of sound physical and mental health.[47] As shown by the
clearances from the National Bureau of Investigation,[48] the Philippine National Police,[49] the trial courts,[50] and the barangay,[51] he has no
criminal record or pending criminal charges.[52]

Respondent presented Rudy Carvajal (Carvajal) and Bernard Sepulveda (Sepulveda) as his character witnesses. At that time,
Sepulveda was the vice-mayor of Borbon, Cebu.[53] He has known Ong since 1970 because Ong is the close friend of Sepulveda’s
brother.[54] He testified that Ong is very helpful in the community and adopts the Filipino culture.[55] Meanwhile, Carvajal testified that he
has known Ong since the 1970s because they were high school classmates.[56] He testified that Ong is morally irreproachable and
possesses all the qualifications to be a good citizen of the Philippines.[57] Carvajal is a businessman engaged in leasing office spaces.[58]

On November 23, 2001, the trial court granted Ong’s petition. Among other things, the trial court held that:

xxxx

By the testimonial and documentary evidence adduced by the [respondent], the following facts had been
established.[59]

xxxx

x x x [Respondent] is a businessman/business manager engaged in lawful trade and business since 1989 from
which he derives an average annual income of more than One Hundred Fifty Thousand Pesos (Exhibit U, V, W, and X
with sub-markings); x x x[60]

The dispositive portion of the trial court’s Decision reads:

From the evidence presented by [respondent], this Court believes and so holds that [respondent] possesses all
the qualifications and none of the disqualifications provided for by law to become a citizen of the Philippines.

WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, [respondent] KERRY LAO
ONG is hereby admitted as citizen of the Republic of the Philippines.

SO ORDERED.[61]

Republic’s Appeal

On January 31, 2003, the Republic, through the Solicitor General, appealed
to the CA. The Republic faulted the trial court for granting Ong’s petition despite his failure to prove that he possesses a known lucrative
trade, profession or lawful occupation as required under Section 2, fourth paragraph of the Revised Naturalization Law.[62]

The Republic posited that, contrary to the trial court’s finding, respondent Ong did not prove his allegation that he is a
businessman/business manager earning an average income of P150,000.00 since 1989. His income tax returns belie the value of his
income. Moreover, he failed to present evidence on the nature of his profession or trade, which is the source of his income. Considering
that he has four minor children (all attending exclusive private schools), he has declared no other property and/or bank deposits, and he
has not declared owning a family home, his alleged income cannot be considered lucrative. Under the circumstances, the Republic
maintained that respondent Ong is not qualified as he does not possess a definite and existing business or trade.[63]

Respondent Ong conceded that the Supreme Court has adopted a higher standard of income for applicants for naturalization.[64] He
likewise conceded that the legal definition of lucrative income is the existence of an appreciable margin of his income over his
expenses.[65] It is his position that his income, together with that of his wife, created an appreciable margin over their
expenses.[66] Moreover, the steady increase in his income, as evidenced in his tax returns, proved that he is gainfully employed.[67]
 The appellate court dismissed the Republic’s appeal. It explained:
In the case at bar, the [respondent] chose to present [pieces of evidence] which relates [sic] to his lucrative trade,
profession or lawful occupation. Judging from the present standard of living and the personal circumstances of the
[respondent] using the present time as the index for the income stated by the [respondent], it may appear that the
[respondent] has no lucrative employment. However, We must be mindful that the petition for naturalization was filed
in 1996, which is already ten years ago. It is of judicial notice that the value of the peso has taken a considerable plunge
in value since that time up to the present. Nonetheless, if We consider the income earned at that time, the ages of the
children of the [respondent], the employment of his wife, We can say that there is an appreciable margin of his income
over his expenses as to be able to provide for an adequate support.[68]

The appellate court denied the Republic’s motion for reconsideration[69] in its Resolution dated November 7, 2006.[70]

Issue

Whether respondent Ong has proved that he has some known lucrative trade, profession or lawful occupation in
accordance with Section 2, fourth paragraph of the Revised Naturalization Law.

Petitioner’s Arguments

Petitioner assigns as error the appellate court’s ruling that “there is an appreciable margin of (respondent’s) income over his
expenses as to be able to provide for an adequate support.”[71] The Republic contends that the CA’s conclusion is not supported by the
evidence on record and by the prevailing law.[72]

The only pieces of evidence presented by Ong to prove that he qualifies under Section 2, fourth paragraph of the Revised
Naturalization Law, are his tax returns for the years 1994 to 1997, which show that Ong earns from P60,000.00 to P128,000.00
annually. This declared income is far from the legal requirement of lucrative income. It is not sufficient to provide for the needs of a family
of six, with four children of school age.[73]

Moreover, none of these tax returns describes the source of Ong’s income, much less can they describe the lawful nature
thereof.[74] The Republic also noted that Ong did not even attempt to describe what business he is engaged in. Thus, the trial and appellate
courts’ shared conclusion that Ong is a businessman is grounded entirely on speculation, surmises or conjectures.[75]

The Republic thus prays for the reversal of the appellate court’s Decision and the denial of Ong’s petition for naturalization.[76]

Respondent’s Arguments

Respondent asks for the denial of the petition as it seeks a review of factual findings, which review is improper in a Rule 45
petition.[77] He further submits that his tax returns support the conclusion that he is engaged in lucrative trade.[78]

Our Ruling

The courts must always be mindful that naturalization proceedings are imbued with the highest public interest.[79] Naturalization
laws should be rigidly enforced and strictly construed in favor of the government and against the
applicant.[80] The burden of proof rests upon the applicant to show full and
complete compliance with the requirements of law.[81]

In the case at bar, the controversy revolves around respondent Ong’s compliance with the qualification found in Section 2, fourth
paragraph of the Revised Naturalization Law, which provides:

SECTION 2. Qualifications. – Subject to section four of this Act, any person having the following qualifications
may become a citizen of the Philippinesby naturalization:

xxxx

Fourth. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency,
or must have some known lucrative trade, profession, or lawful occupation;

x x x x[82]

Based on jurisprudence, the qualification of “some known lucrative trade, profession, or lawful occupation” means “not only that the
person having the employment gets enough for his ordinary necessities in life. It must be shown that the employment gives one an
income such thatthere is an appreciable margin of his income over his expenses as to be able to provide for an adequate support in the
event of unemployment, sickness, or disability to work and thus avoid one’s becoming the object of charity or a public charge.”[83] His
income should permit “him and the members of his family to live with reasonable comfort, in accordance with the prevailing standard of
living, and consistently with the demands of human dignity, at this stage of our civilization.”[84]

Moreover, it has been held that in determining the existence of a lucrative

income, the courts should consider only the applicant’s income; his or her spouse’s income should not be included in the assessment. The
spouse’s additional income is immaterial “for under the law the petitioner should be the one to possess ‘some known lucrative trade,
profession or lawful occupation’ to qualify him to become a Filipino citizen.”[85] Lastly, the Court has consistently held that the applicant’s
qualifications must be determined as of the time of the filing of his petition.[86]

Going over the decisions of the courts below, the Court finds that the foregoing guidelines have not been observed. To recall,
respondent Ong and his witnesses testified that Ong is a businessman but none of them identified Ong’s business or described its
nature. The Court finds it suspect that Ong did not even testify as to the nature of his business, whereas his witness Carvajal did with
respect to his own (leasing of office space). A comparison of their respective testimonies is reproduced below:

Carvajal’s testimony

Q: You said earlier that you are a businessman?

A: Yes, Sir.

Q: How long have you been a businessman?

A: Since 1980.

Q: And what is the business you are engaged in?

A: I am into leasing of office spaces.[87]

Kerry Lao Ong’s testimony

Q: What is your present occupation, Mr. Ong?

A: Businessman.

Q: Since when have you engaged in that occupation?

A: After graduation from college.[88]

The dearth of documentary evidence compounds the inadequacy of the testimonial evidence. The applicant provided no
documentary evidence, like business permits, registration, official receipts, or other business records to demonstrate his proprietorship or
participation in a business. Instead, Ong relied on his general assertions to prove his possession of “some known lucrative trade, profession
or lawful occupation.” Bare, general assertions cannot discharge the burden of proof that is required of an applicant for naturalization.

The paucity of evidence is unmistakable upon a reading of the trial court’s decision. The trial court held that respondent Ong “is a
businessman engaged in lawful trade and business since 1989”[89] but did not cite the evidence, which supports such finding. After poring
over the records, the Court finds that the reason for the lack of citation is the absence of evidence to support such conclusion. The trial
court’s conclusion that Ong has been a businessman since 1989 is only an assertion found in Ong’s petition for naturalization.[90] But, on
the witness stand, Ong did not affirm this assertion. Instead, he testified that he had been a businessman since he graduated from college,
which was in 1978.[91]

Further, the trial court, citing Exhibits U, V, W, and X (which are Ong’s tax returns), mistakenly found that Ong “derives an average
annual income of more than One Hundred Fifty Thousand Pesos.”[92] This conclusion is not supported by the evidence. The cited tax
returns show that Ong’s gross annual income for the years 1994 to 1997 were P60,000.00, P118,000.00, P118,000.00, and P128,000.00,
respectively. The average annual income from these tax returns is P106,000.00 only, not P150,000.00 as the trial court held. It appears
that the trial court again derived its conclusion from an assertion in Ong’s petition,[93] but not from the evidence.
As for the CA, it no longer ruled on the question whether Ong has a known business or trade. Instead, it ruled on the issue
whether Ong’s income, as evidenced by his tax returns, can be considered lucrative in 1996. In determining this issue, the CA considered
the ages of Ong’s children, the income that he earned in 1996, and the fact that Ong’s wife was also employed at that time. It then
concluded that there is an appreciable margin of Ong’s income over his expenses.[94]

The Court finds the appellate court’s decision erroneous. First, it should not have included the spouse’s income in its assessment of
Ong’s lucrative income.[95] Second, it failed to consider the following circumstances which have a bearing on Ong’s expenses vis-à-vis his
income: (a) that Ong does not own real property; (b) that his proven average gross annual income around the time of his application, which
was only P106,000.00, had to provide for the education of his four minor children; and (c) that Ong’s children were all studying in exclusive
private schools in Cebu City. Third, the CA did not explain how it arrived at the conclusion that Ong’s income had an appreciable margin
over his known expenses.

Ong’s gross income might have been sufficient to meet his family’s basic needs, but there is simply no sufficient proof that it was
enough to create an appreciable margin of income over expenses. Without an appreciable margin of his income over his family’s
expenses, his income cannot be expected to provide him and his family “with adequate support in the event of unemployment, sickness,
or disability to work.”[96]
 Clearly, therefore, respondent Ong failed to prove that he possesses the qualification of a known lucrative trade provided in
Section 2, fourth paragraph, of
the Revised Naturalization Law.[97]

The Court finds no merit in respondent’s submission that a Rule 45 petition precludes a review of the factual findings of the courts
below.[98] In the first place, the trial court and appellate court’s decisions contain conclusions that are bereft of evidentiary support or
factual basis, which is a known exception[99] to the general rule that only questions of law may be entertained in a Rule 45 petition.

Moreover, a review of the decisions involving petitions for naturalization shows that the Court is not precluded from reviewing
the factual existence of the applicant’s qualifications. In fact, jurisprudence holds that the entire records of the naturalization case are open
for consideration in an appeal to this Court.[100] Indeed, “[a] naturalization proceeding is so infused with public interest that it has been
differently categorized and given special treatment. x x x [U]nlike in ordinary judicial contest, the granting of a petition for naturalization
does not preclude the reopening of that case and giving the government another opportunity to present new evidence. A decision or
order granting citizenship will not even constitute res judicata to any matter or reason supporting a subsequent judgment cancelling the
certification of naturalization already granted, on the ground that it had been illegally or fraudulently procured. For the same reason, issues
even if not raised in the lower court may be entertained on appeal. As the matters brought to the attention of this Court x x x involve facts
contained in the disputed decision of the lower court and admitted by the parties in their pleadings, the present proceeding may be
considered adequate for the purpose of determining the correctness or incorrectness of said decision, in the light of the law and extant
jurisprudence.”[101] In the case at bar, there is even no need to present new evidence. A careful review of the extant records suffices to
hold that respondent Ong has not proven his possession of a “known lucrative trade, profession or lawful occupation” to qualify for
naturalization.

WHEREFORE, premises considered, the petition of the Republic of the Philippines is GRANTED. The Decision dated May 13, 2006 of
the Court of Appeals in CA-G.R. CV No. 74794 is REVERSED and SET ASIDE. The Petition for Naturalization of Kerry Lao Ong is DENIED for
failure to comply with Section 2, fourth paragraph, of Commonwealth Act No. 473, as amended.

SO ORDERED.
B.M. No. 2112 July 24, 2012
IN RE: PETITION RE-ACQUIRE THE PRIVILEGE TO PRACTICE LAW IN THE PHILIPPINES, EPIFANIO B. MUNESES, Petitioner,
RESOLUTION
REYES, J.:
On June 8, 2009, a petition was filed by Epifanio B. Muneses (petitioner) with the Office of the Bar Confidant (OBC) praying
that he be granted the privilege to practice law in the Philippines.
The petitioner alleged that he became a member of the Integrated Bar of the Philippines (IBP) on March 21, 1966; that he lost
his privilege to practice law when he became a citizen of the United States of America (USA) on August 28, 1981; that on
September 15, 2006, he re-acquired his Philippine citizenship pursuant to Republic Act (R.A.) No. 9225 or the "Citizenship
Retention and Re-Acquisition Act of 2003" by taking his oath of allegiance as a Filipino citizen before the Philippine Consulate
General in Washington, D.C., USA; that he intends to retire in the Philippines and if granted, to resume the practice of law.
Attached to the petition were several documents in support of his petition, albeit mere photocopies thereof, to wit:
1. Oath of Allegiance dated September 15, 2006 before Consul General Domingo P. Nolasco;
2. Petition for Re-Acquisition of Philippine Citizenship of same date;
3. Order for Re-Acquisition of Philippine Citizenship also of same date;
4. Letter dated March 13, 2008 evidencing payment of membership dues with the IBP;
5. Attendance Forms from the Mandatory Continuing Legal Education (MCLE).
In Bar Matter No. 1678, dated December 17, 2007, the Court was confronted with a similar petition filed by Benjamin M.
Dacanay (Dacanay) who requested leave to resume his practice of law after availing the benefits of R.A. No. 9225. Dacanay
was admitted to the Philippine Bar in March 1960. In December 1998, he migrated to Canada to seek medical attention for his
ailments and eventually became a Canadian citizen in May 2004. On July 14, 2006, Dacanay re-acquired his Philippine
citizenship pursuant to R.A. No. 9225 after taking his oath of allegiance before the Philippine Consulate General in Toronto,
Canada. He returned to the Philippines and intended to resume his practice of law.
The Court reiterates that Filipino citizenship is a requirement for admission to the bar and is, in fact, a continuing requirement
for the practice of law. The loss thereof means termination of the petitioner’s membership in the bar;ipso jure the privilege to
engage in the practice of law. Under R.A. No. 9225, natural-born citizens who have lost their Philippine citizenship by reason
of their naturalization as citizens of a foreign country are deemed to have re-acquired their Philippine citizenship upon taking
the oath of allegiance to the Republic.1 Thus, a Filipino lawyer who becomes a citizen of another country and later re-acquires
his Philippine citizenship under R.A. No. 9225, remains to be a member of the Philippine Bar. However, as stated in Dacanay,
the right to resume the practice of law is not automatic.2 R.A. No. 9225 provides that a person who intends to practice his
profession in the Philippines must apply with the proper authority for a license or permit to engage in such practice.3
It can not be overstressed that:
The practice of law is a privilege burdened with conditions.1âwphi1 It is so delicately affected with public interest that it is
both the power and duty of the State (through this Court) to control and regulate it in order to protect and promote the public
welfare.
Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality, faithful observance of the legal
profession, compliance with the mandatory continuing legal education requirement and payment of membership fees to the
Integrated Bar of the Philippines (IBP) are the conditions required for membership in good standing in the bar and for enjoying
the privilege to practice law. Any breach by a lawyer of any of these conditions makes him unworthy of the trust and
confidence which the courts and clients repose in him for the continued exercise of his professional privilege.4
Thus, in pursuance to the qualifications laid down by the Court for the practice of law, the OBC required the herein petitioner
to submit the original or certified true copies of the following documents in relation to his petition:
1. Petition for Re-Acquisition of Philippine Citizenship;
2. Order (for Re-Acquisition of Philippine citizenship);
3. Oath of Allegiance to the Republic of the Philippines;
4. Identification Certificate (IC) issued by the Bureau of Immigration;
5. Certificate of Good Standing issued by the IBP;
6. Certification from the IBP indicating updated payments of annual membership dues;
7. Proof of payment of professional tax; and
8. Certificate of compliance issued by the MCLE Office.
In compliance thereof, the petitioner submitted the following:
1. Petition for Re-Acquisition of Philippine Citizenship;
2. Order (for Re-Acquisition of Philippine citizenship);
3. Oath of Allegiance to the Republic of the Philippines;
4. Certificate of Re-Acquisition/Retention of Philippine Citizenship issued by the Bureau of Immigration, in lieu of the
IC;
5. Certification dated May 19, 2010 of the IBP-Surigao City Chapter attesting to his good moral character as well as his
updated payment of annual membership dues;
6. Professional Tax Receipt (PTR) for the year 2010;
7. Certificate of Compliance with the MCLE for the 2nd compliance period; and
8. Certification dated December 5, 2008 of Atty. Gloria Estenzo-Ramos, Coordinator, UC-MCLE Program, University of
Cebu, College of Law attesting to his compliance with the MCLE.
The OBC further required the petitioner to update his compliance, particularly with the MCLE. After all the requirements were
satisfactorily complied with and finding that the petitioner has met all the qualifications and none of the disqualifications for
membership in the bar, the OBC recommended that the petitioner be allowed to resume his practice of law.
Upon this favorable recommendation of the OBC, the Court adopts the same and sees no bar to the petitioner's resumption to
the practice of law in the Philippines.
WHEREFORE, the petition of Attorney Epifanio B. Muneses is hereby GRANTED, subject to the condition that he shall re-take
the Lawyer's Oath on a date to be set by the Court and subject to the payment of appropriate fees.
Furthermore, the Office of the Bar Confidant is directed to draft the necessary guidelines for the re-acquisition of the privilege
to resume the practice of law for the guidance of the Bench and Bar.
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 the Percent (%) of the Excess
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 xx
x 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 xxx

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.
 SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M.
FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
“COMPANERA” PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA “LOI” EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M. A. MADRIGAL, SERGIO
OSMENA III, RALPH G. RECTO, and MAR ROXAS,
Petitioners,

- versus -

EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and in behalf of the President of the Philippines,
Respondents.
G.R. No. 169777

DECISION
CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of
the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the
U.S. Constitutional Convention said: “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of
one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.”[1]

History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence,
the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by
issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for
being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come
from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution,
being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government
that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the
executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations,
the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the
Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway
project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North
Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to
investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations[2] dated September 22, 2005 to
the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector
General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine
Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled “Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005”; (2)
Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled “The Philippines as the Wire-Tapping Capital
of the World”; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled “Clear and Present
Danger”; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal – Resolution Directing the Committee
on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the
Military in the So-called “Gloriagate Scandal”; and (5) Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing
the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the
President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso
S. Senga who, by letter[3] dated September 27, 2005, requested for its postponement “due to a pressing operational situation
that demands [his] utmost personal attention” while “some of the invited AFP officers are currently attending to other urgent
operational matters.”

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a
letter[4]dated September 27, 2005 “respectfully request[ing] for the postponement of the hearing [regarding the NorthRail
project] to which various officials of the Executive Department have been invited” in order to “afford said officials ample time
and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its
investigation.”

Senate President Drilon, however, wrote[5] Executive Secretary Ermita that the Senators “are unable to accede to [his
request]” as it “was sent belatedly” and “[a]ll preparations and arrangements as well as notices to all resource persons were
completed [the previous] week.”

Senate President Drilon likewise received on September 28, 2005 a letter[6] from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a
copy of the report of the UP Law Center on the contract agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION
OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS
APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER
PURPOSES,”[7] which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as
follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22
of the Constitution and to implement the Constitutional provisions on the separation of powers between co-
equal branches of the government, all heads of departments of the Executive Branch of the government
shall secure the consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the
appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or
divulge confidential or classified information officially known to them by reason of their office and not made
available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public
officers covered by this executive order,including:
i. Conversations and correspondence between the President and the public official
covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May
1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
ii. Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995; Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).
iii. Information between inter-government agencies prior to the conclusion of treaties
and executive agreements (Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998);
iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
v. Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:
i. Senior officials of executive departments who in the judgment of the department heads are
covered by the executive privilege;
ii. Generals and flag officers of the Armed Forces of the Philippines and such other officers who
in the judgment of the Chief of Staff are covered by the executive privilege;
iii. Philippine National Police (PNP) officers with rank of chief superintendent or higher and
such other officers who in the judgment of the Chief of the PNP are covered by the
executive privilege;
iv. Senior national security officials who in the judgment of the National Security Adviser are
covered by the executive privilege; and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section
2 (b) hereof shall secure prior consent of the President prior to appearing before either House of
Congress to ensure the observance of the principle of separation of powers, adherence to the rule on
 executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and
another letter[8] informing him “that officials of the Executive Department invited to appear at the meeting [regarding the
NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464]” and that
“said officials have not secured the required consent from the President.” On even date which was also the scheduled date of
the hearing on the alleged wiretapping, Gen. Senga sent a letter[9] to Senator Biazon, Chairperson of the Committee on
National Defense and Security, informing him “that per instruction of [President Arroyo], thru the Secretary of National
Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written
approval from the President” and “that no approval has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September 2005.”

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by
the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the
AFP officials invited attending.

For defying President Arroyo’s order barring military personnel from testifying before legislative inquiries without her
approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial
proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent
letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority
Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ)
Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways
General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.[10] NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.[11]

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition,
were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin
Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, COURAGE, an organization of government employees,
and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and
peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita,
in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to
impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that
E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al.
allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation
and conduct oversight functions in the implementation of laws; COURAGEalleges that the tenure of its members in public
office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by
Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information
and to transparent governance are threatened by the imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for
being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.[12] (ALG), alleging that as a coalition of 17 legal resource
non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which
was denied to the public by E.O. 464,[13] prays, that said order be declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the
issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with
its continued enforcement since it directly interferes with and impedes the valid exercise of the Senate’s powers and functions
and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R.
No. 169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate
and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that
it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in
Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the government.

Meanwhile, by letter[14] dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and
other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter[15] dated February 8, 2006, that “[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a
clearance from the President to allow [them] to appear before the public hearing” and that “they will attend once [their]
request is approved by the President.” As none of those invited appeared, the hearing on February 10, 2006 was cancelled.[16]

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of
the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,[17] and those from the
Department of Budget and Management[18] having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson
Ignacio R. Bunye,[19] DOJ Secretary Raul M. Gonzalez[20] and Department of Interior and Local Government Undersecretary
Marius P. Corpus[21] communicated their inability to attend due to lack of appropriate clearance from the President pursuant
to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated
Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine
lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari
and prohibition, docketed asG.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing,
enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in
the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art.
XIII, Sec. 16. Theprocedural issue of whether there is an actual case or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is
not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation
(c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.[22]

Petitioners in G.R. No. 169660[23] and G.R. No. 169777[24] filed their memoranda on March 7, 2006, while those in G.R.
No. 169667[25] and G.R. No. 169834[26] filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file
any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum[27] was
granted, subsequently filed a manifestation[28] dated March 14, 2006 that it would no longer file its memorandum in the
interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.[29]

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 21[30]

Art. VI, Sec. 22[31]
Art. VI, Sec. 1[32]
Art. XI, Sec. 1[33]
Art. III, Sec. 7[34]
Art. III, Sec. 4[35]
Art. XIII, Sec. 16 [36]
Art. II, Sec. 28[37]

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum[38] on
March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a
valid exercise of the Court’s power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must
have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.[39]

Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement
between the parties lies, discussion of the rest of the requisites shall be omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it
clear that they, adverting to the non-appearance of several officials of the executive department in the investigations called by
the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of Representatives
which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of
Representatives or any of its committees which was aborted due to the implementation of E.O. 464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and underrepresented, and that of
the other petitioner groups and individuals who profess to have standing as advocates and defenders of the Constitution,
respondents contend that such interest falls short of that required to confer standing on them as parties “injured-in-fact.”[40]

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending power.[41]

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by
reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin[42] and Valmonte v. Philippine
Charity Sweepstakes Office,[43] respondents assert that to be considered a proper party, one must have a personal and
substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.[44]

That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation[45] is not disputed. E.O. 464, however, allegedly stifles the ability
of the members of Congress to access information that is crucial to law-making.[46] Verily, the Senate, including its individual
members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators.[47]

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador
(Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of
Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being
sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the
House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant
with the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.[48]

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of
their co-petitioners COURAGE and CODAL is rendered unnecessary.[49]

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent
members of the IBP Board of Governors and the IBP in behalf of its lawyer members, [50] invoke their constitutional right to
information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is
essential to the effective exercise of other constitutional rights[51] and to the maintenance of the balance of power among the
three branches of the government through the principle of checks and balances.[52]

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of
Representatives,[53] this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a
citizen satisfies the requirement of personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues
raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing
on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or
other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and
specific interest in raising the questions being raised.[54] The first and last determinants not being present as no public funds
or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of
the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a “generalized interest” which it shares with the rest of the
political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in
part to cast it in a form traditionally capable of judicial resolution.[55] In fine, PDP-Laban’s alleged interest as a political party
does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually
withheld her consent or prohibited the appearance of the invited officials.[56] These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited
their attendance.[57] Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005,
respondents claim that the instruction not to attend without the President’s consent was based on its role as Commander-in-
Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse
its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for
challenging the validity of E.O. 464.

The Court finds respondents’ assertion that the President has not withheld her consent or prohibited the appearance of
the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is
concerned. ForE.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from
the President in order to bar officials from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of
petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present case
ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the
information in the possession of these officials. To resolve the question of whether such withholding of information violates
the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of
inquiry, is in order.
The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the
power of inquiry in the unicameral legislature established therein – the Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,[58] a case decided in 1950
under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates
by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify
thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by
resolution of the Senate, detained for contempt. Upholding the Senate’s power to punish Arnault for contempt, this Court
held:

Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other
words, the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the legislative body
does not itself possess the requisite information – which is not infrequently true – recourse must be had to
others who do possess it. Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.[59] . . . (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.[60] The matters which may be
a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation
of government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, “also involved government agencies created by Congress and officers whose
positions it is within the power of Congress to regulate or even abolish.”

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that
the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive
operations.

As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity of information in
the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for
wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel
the disclosure thereof.

As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,[61] the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the
need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the
questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
 Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21
also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if
they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at
present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded
judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of “executive privilege.” Since this term figures prominently in the challenged order, it being
mentioned in its provisions, its preambular clauses,[62] and in its very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.

Executive privilege

The phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the promulgation of the
1986 Constitution.[63] Being of American origin, it is best understood in light of how it has been defined and used in the legal
literature of the United States.

Schwartz defines executive privilege as “the power of the Government to withhold information from the public, the
courts, and the Congress.”[64] Similarly, Rozell defines it as “the right of the President and high-level executive branch officers
to withhold information from Congress, the courts, and ultimately the public.”[65]

Executive privilege is, nonetheless, not a clear or unitary concept. [66] It has encompassed claims of varying
kinds.[67] Tribe, in fact, comments that while it is customary to employ the phrase “executive privilege,” it may be more
accurate to speak of executive privileges “since presidential refusals to furnish information may be actuated by any of at least
three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial
or legislative investigations.”

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose
the identity of persons who furnish information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege forinternal deliberations has been said to attach to intragovernmental documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and
policies are formulated. [68]

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role
and responsibilities of the executive branch of our government. Courts ruled early that the executive had a
right to withhold documents that might reveal military or state secrets. The courts have also granted the
executive a right to withhold the identity of government informers in some circumstances and a qualified
right to withhold information related to pending investigations. x x x”[69] (Emphasis and underscoring
supplied)

The entry in Black’s Law Dictionary on “executive privilege” is similarly instructive regarding the scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive
from disclosure requirements applicable to the ordinary citizen or organization where such exemption
is necessary to the discharge of highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic secrets but also to documents
integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is,
those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative
communications.[70] (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the traditional privileges, but also whether that privilege should be
honored in a given procedural setting.[71]
 The leading case on executive privilege in the United States is U.S. v. Nixon, [72] decided in 1974. In issue in that case was
the validity of President Nixon’s claim of executive privilege against a subpoena issued by a district court requiring the
production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the
President’s general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that while
there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent
that it relates to the effective discharge of a President’s powers. The Court, nonetheless, rejected the President’s claim of
privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal
justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.[73] Despite frequent assertion of
the privilege to deny information to Congress, beginning with President Washington’s refusal to turn over treaty negotiation
records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.[74] However, the U.S. Court
of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the President’s
privilege over his conversations against a congressional subpoena.[75] Anticipating the balancing approach adopted by the U.S.
Supreme Court inNixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the
interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court
declined to enforce the subpoena. [76]

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.[77] Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of
the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers under
the Constitution x x x ” (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve,
as expressly stated in the decision, the right of the people to information.[78] Nonetheless, the Court recognized that there
are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not
in name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG,[79] the Court held that this jurisdiction recognizes the common law holding that there is a
“governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters.”[80] The same case held that closed-door Cabinet meetings are also a recognized limitation on the
right to information.

Similarly, in Chavez v. Public Estates Authority,[81] the Court ruled that the right to information does not extend to
matters recognized as “privileged information under the separation of powers,”[82] by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military
and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement
agencies before the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional
concept, a claim thereofmay be valid or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the
mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the
President prior to appearing before Congress. There are significant differences between the two provisions, however, which
constrain this Court to discuss the validity of these provisions separately.
 Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any
official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to
depend on the department heads’ possession of any information which might be covered by executive privilege. In fact, in
marked contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior
consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question
hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or
upon the request of either House, as the rules of each House shall provide, appear before and be heard by
such House on any matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section
22 which provides for the question hour must be interpreted vis-à-vis Section 21 which provides for the power of either House
of Congress to “conduct inquiries in aid of legislation.” As the following excerpt of the deliberations of the Constitutional
Commission shows, the framers were aware that these two provisions involved distinct functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I
noticed that members of the Cabinet cannot be compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular problem in this regard, Madam President, because
in our experience in the Regular Batasang Pambansa – as the Gentleman himself has experienced in the
interim Batasang Pambansa – one of the most competent inputs that we can put in our committee
deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet
ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually
issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested
under Section 22] does not mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or congressional
investigation. According to Commissioner Suarez, that is allowed and their presence can be had under
Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the
Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which
anybody for that matter, may be summoned and if he refuses,he can be held in contempt of the
House.[83] (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant
to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner
Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads
discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding
Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department,
Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that
instead of putting it as Section 31,it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

 MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that
in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking;
whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in
Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope
Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet
would be very, very essential not only in the application of check and balance but also, in effect, in aid of
legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner
Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would
it be, Commissioner Davide?

MR. DAVIDE. Yes.[84] (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the
same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners
understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the
question hour. Commissioner Davide’s only concern was that the two provisions on these distinct powers be placed closely
together, they beingcomplementary to each other. Neither Commissioner considered them as identical functions of
Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted exchange, Commissioner
Maambong’s committee – the Committee on Style – shared the view that the two provisions reflected distinct functions of
Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the
Legislative Department. His views may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the “question hour” has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the
operation of the government,[85] corresponding to what is known in Britain as the question period. There was a specific
provision for a question hour in the 1973 Constitution[86] which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of
the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of the
Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly
for the program of government and shall determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected officials cannot be terminated before their term
expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the
National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be
changed.[87]

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in
the present Constitution so as to conform more fully to a system of separation of powers.[88] To that extent, the question
hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That
department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered
powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period,
the need to enforce Congress’ right to executive information in the performance of its legislative function becomes more
imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source – even from officials of departments and
agencies in the executive branch. In the United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation between the legislative and executive
branches. It is this very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the legislative and executive branches
in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce made reliance by the Congress
upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative
tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content, since it
 depends for its effectiveness solely upon information parceled out ex gratia by the executive.[89] (Emphasis
and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a
question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.[90]

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional
Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of
the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom
is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one
executiveofficial may be exempted from this power — the President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency,
judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of
powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as
even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass
on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any
reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department
heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic
rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the
question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department
heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress
is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of
privilege is subsequently made, either by the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President
prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of
offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are “covered by the executive privilege.”

The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 —
“Nature, Scope and Coverage of Executive Privilege” —, it is evident that under the rule of ejusdem generis, the determination
by the President under this provision is intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers
persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific
categories ofinformation and not to categories of persons.
 In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the
reference to persons being “covered by the executive privilege” may be read as an abbreviated way of saying that the person
is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section
2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is “covered by the executive
privilege,” such official is subjected to the requirement that he first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by
the President. The proviso allowing the President to give its consent means nothing more than that the President may reverse
a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President
under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the official’s not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined
that the requested information is privileged, and that the President has not reversed such determination. Such declaration,
however, even without mentioning the term “executive privilege,” amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied
claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the
implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed
that officials of the Executive Department invited to appear at the meeting will not be able to attend the
same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled “Ensuring
Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And
Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The
Constitution, And For Other Purposes”. Said officials have not secured the required consent from the
President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to
be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state
that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited
officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has
been made, by the designated head of office or the President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be
deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only
means that the President has not reversed the standing prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President. In fine,
an implied claim of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against
Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed
as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of
the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are
recognized as confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.[91](Emphasis
and underscoring supplied)
 Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine
whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor
and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per
se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what isincluded in the phrase “confidential or classified information between the
President and the public officers covered by this executive order.”

Certainly, Congress has the right to know why the executive considers the requested information privileged. It does
not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the
President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested
information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like
a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged
by the head of the department which has control over the matter, after actual personal consideration by that
officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege,
and yet do so without forcing a disclosure of the very thing the privilege is designed to
protect.[92] (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be
respected.[93] These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman
in Almonte v. Vasquez[94] and, more in point, against a committee of the Senate in Senate Select Committee on Presidential
Campaign Activities v. Nixon.[95]

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible,
thereby preventing the Court from balancing such harm against plaintiffs’ needs to determine whether to
override any claims of privilege.[96] (Underscoring supplied)

And so is U.S. v. Article of Drug:[97]

On the present state of the record, this Court is not called upon to perform this balancing
operation. In stating its objection to claimant’s interrogatories, government asserts, and nothing more, that
the disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown – nor even alleged – that those who evaluated
claimant’s product were involved in internal policymaking, generally, or in this particular instance. Privilege
cannot be set up by an unsupported claim. The facts upon which the privilege is based must be
established. To find these interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimant’s products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua sponte.[98] (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy[99] similarly emphasizes that “an agency must provide ‘precise and certain’
reasons for preserving the confidentiality of requested information.”

Black v. Sheraton Corp. of America[100] amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of the
documents within its scope as well asprecise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of
the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua
 sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive
as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient
to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a
broad claim in which the Defendant has given no precise or compelling reasons to shield these documents
from outside scrutiny, would make a farce of the whole procedure.[101] (Emphasis and underscoring
supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the
grounds therefor. Apropos is the following ruling in McPhaul v. U.S:[102]

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to
these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate reasons for failing to
produce the records of the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon
the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the
blocking of its inquiry by taking other appropriate steps to obtain the records. ‘To deny the Committee the
opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction
of its processes. His failure to make any such statement was “a patent evasion of the duty of one summoned
to produce papers before a congressional committee[, and] cannot be condoned.” (Emphasis and
underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity
as to compel disclosure of the information which the privilege is meant to protect.[103] A useful analogy in determining the
requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.[104] declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the court to
say whether his silence is justified, and to require him to answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his claim, were required to prove the hazard in the
sense in which a claim is usually required to be established in court, he would be compelled to surrender the
very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be
evident from the implications of the question, in the setting in which it is asked, that a responsive answer
to the question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.” x x x (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It
is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of
Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of
office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and
scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation
of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the
United States where, so it claims, only the President can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the President’s authority and has the effect of prohibiting
the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege,
as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of
the unique role and responsibilities of the executive branch,[105] or in those instances where exemption from disclosure
is necessary to the discharge ofhighly important executive responsibilities.[106] The doctrine of executive privilege is thus
premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress,
the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power
to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which
case the Executive Secretary must state that the authority is “By order of the President,” which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3,
in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment,
might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive
Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive
Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the
lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer
bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means
to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure “respect for the rights of public officials appearing in inquiries in aid of
legislation.” That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution
mandating that “[t]he rights of persons appearing in or affected by such inquiries shall be respected.”

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure
respect for such officials does not change the infirm nature of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of
public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely
the legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the
production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are
thereby denied access to information which they can use in formulating their own opinions on the matter before Congress —
opinions which they can then communicate to their representatives and other government officials through the various legal
means allowed by their freedom of expression. Thus holdsValmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the people’s will. Yet, this open dialogue can
be effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.[107] (Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislature’s power of inquiry.

Implementation of E.O. 464 prior to its publication

 While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need
for publication. On the need for publishing even those statutes that do not directly apply to people in general, Tañada v.
Tuvera states:

The term “laws” should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a relative of President Marcos who was
decreed instant naturalization. It surely cannot be said that such a law does not affect the public although
it unquestionably does not apply directly to all the people. The subject of such law is a matter of public
interest which any member of the body politic may question in the political forums or, if he is a proper
party, even in courts of justice.[108] (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may
question before this Court. Due process thus requires that the people should have been apprised of this issuance before it
was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If
the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason
therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of
invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is
impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy, based on
the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the
doctrine of popular sovereignty. (Underscoring supplied)[109]

Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed
valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government,
but we shall have given up something of much greater value – our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of
2005), “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE
PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION
UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES,” are declared VOID. Sections 1 and 2(a) are, however, VALID.

SO ORDERED.
G.R. No. 202242 July 17, 2012
FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.
DECISION
MENDOZA, J.:
The issue at hand has been in hibernation until the unexpected departure of Chief Justice Renato C. Corona on May 29, 2012,
and the nomination of former Solicitor General Francisco I. Chavez (petitioner), as his potential successor, triggered the filing
of this case. The issue has constantly been nagging legal minds, yet remained dormant for lack of constitutional challenge.
As the matter is of extreme urgency considering the constitutional deadline in the process of selecting the nominees for the
vacant seat of the Chief Justice, the Court cannot delay the resolution of the issue a day longer. Relegating it in the meantime
to the back burner is not an option.
Does the first paragraph of Section 8, Article VIII of the 1987 Constitution allow more than one (1) member of Congress to sit
in the JBC? Is the practice of having two (2) representatives from each house of Congress with one (1) vote each sanctioned by
the Constitution? These are the pivotal questions to be resolved in this original action for prohibition and injunction.
Long before the naissance of the present Constitution, the annals of history bear witness to the fact that the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of
the government. Like their progenitor of American origins, both the Malolos Constitution1and the 1935 Constitution2 had
vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on
Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking
confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.3
Then, with the fusion of executive and legislative power under the 1973 Constitution,4 the appointment of judges and justices
was no longer subject to the scrutiny of another body. It was absolute, except that the appointees must have all the
qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary from political pressure and partisan activities,5 the
members of the Constitutional Commission saw the need to create a separate, competent and independent body to
recommend nominees to the President. Thus, it conceived of a body representative of all the stakeholders in the judicial
appointment process and called it the Judicial and Bar Council (JBC). Its composition, term and functions are provided under
Section 8, Article VIII of the Constitution, viz:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector.
(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the
Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four
years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for
one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.
(4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The
Supreme Court shall provide in its annual budget the appropriations for the Council.
(5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other
functions and duties as the Supreme Court may assign to it.
In compliance therewith, Congress, from the moment of the creation of the JBC, designated one representative to sit in the
JBC to act as one of the ex officio members.6 Perhaps in order to give equal opportunity to both houses to sit in the exclusive
body, the House of Representatives and the Senate would send alternate representatives to the JBC. In other words, Congress
had only one (1) representative.
In 1994, the composition of the JBC was substantially altered. Instead of having only seven (7) members, an eighth (8th)
member was added to the JBC as two (2) representatives from Congress began sitting in the JBC - one from the House of
Representatives and one from the Senate, with each having one-half (1/2) of a vote.7 Then, curiously, the JBC En Banc, in
separate meetings held in 2000 and 2001, decided to allow the representatives from the Senate and the House of
Representatives one full vote each.8 At present, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr.
(respondents) simultaneously sit in the JBC as representatives of the legislature.
It is this practice that petitioner has questioned in this petition,9 setting forth the following
GROUNDS FOR ALLOWANCE OF THE PETITION
I
Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC shall have only one
representative from Congress.
II
The framers of the Constitution clearly envisioned, contemplated and decided on a JBC composed of only seven (7)
members.
III
Had the framers of the Constitution intended that the JBC composed of the one member from the Senate and one
member from the House of Representatives, they could have easily said so as they did in the other provisions of the
Constitution.
IV
The composition of the JBC providing for three ex-officio members is purposely designed for a balanced
representation of each of the three branches of the government.
 V
One of the two (2) members of the JBC from Congress has no right (not even ½ right) to sit in the said constitutional
body and perform the duties and functions of a member thereof.
VI
The JBC cannot conduct valid proceedings as its composition is illegal and unconstitutional.10
On July 9, 2012, the JBC filed its Comment.11 It, however, abstained from recommending on how this constitutional issue
should be disposed in gracious deference to the wisdom of the Court. Nonetheless, the JBC was more than generous enough
to offer the insights of various personalities previously connected with it.12
Through the Office of the Solicitor General (OSG), respondents defended their position as members of the JBC in their
Comment13 filed on July 12, 2012. According to them, the crux of the controversy is the phrase "a representative of
Congress."14 Reverting to the basics, they cite Section 1, Article VI of the Constitution15 to determine the meaning of the term
"Congress." It is their theory that the two houses, the Senate and the House of Representatives, are permanent and
mandatory components of "Congress," such that the absence of either divests the term of its substantive meaning as
expressed under the Constitution. In simplistic terms, the House of Representatives, without the Senate and vice-versa, is not
Congress.16 Bicameralism, as the system of choice by the Framers, requires that both houses exercise their respective powers
in the performance of its mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the Constitution speaks
of "a representative from Congress," it should mean one representative each from both Houses which comprise the entire
Congress.17
Tracing the subject provision’s history, the respondents claim that when the JBC was established, the Framers originally
envisioned a unicameral legislative body, thereby allocating "a representative of the National Assembly" to the JBC. The
phrase, however, was not modified to
aptly jive with the change to bicameralism, the legislative system finally adopted by the Constitutional Commission on July 21,
1986. According to respondents, if the Commissioners were made aware of the consequence of having a bicameral legislature
instead of a unicameral one, they would have made the corresponding adjustment in the representation of Congress in the
JBC.18
The ambiguity having resulted from a plain case of inadvertence, the respondents urge the Court to look beyond the letter of
the disputed provision because the literal adherence to its language would produce absurdity and incongruity to the
bicameral nature of Congress.19 In other words, placing either of the respondents in the JBC will effectively deprive a house of
Congress of its representation. In the same vein, the electorate represented by Members of Congress will lose their only
opportunity to participate in the nomination process for the members of the Judiciary, effectively diminishing the republican
nature of the government.20
The respondents further argue that the allowance of two (2) representatives of Congress to be members of the JBC does not
render the latter’s purpose nugatory. While they admit that the purpose in creating the JBC was to insulate appointments to
the Judiciary from political influence, they likewise cautioned the Court that this constitutional vision did not intend to entirely
preclude political factor in said appointments. Therefore, no evil should be perceived in the current set-up of the JBC because
two (2) members coming from Congress, whose membership to certain political parties is irrelevant, does not necessarily
amplify political partisanship in the JBC. In fact, the presence of two (2) members from Congress will most likely provide
balance as against the other six (6) members who are undeniably presidential appointees.21
The Issues
In resolving the procedural and substantive issues arising from the petition, as well as the myriad of counter-arguments
proffered by the respondents, the Court synthesized them into two:
(1) Whether or not the conditions sine qua non for the exercise of the power of judicial review have been met in this
case; and
(2) Whether or not the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom
are members of Congress, runs counter to the letter and spirit of the 1987 Constitution.
The Power of Judicial Review
In its Comment, the JBC submits that petitioner is clothed with locus standi to file the petition, as a citizen and taxpayer, who
has been nominated to the position of Chief Justice.22
For the respondents, however, petitioner has no "real interest" in questioning the constitutionality of the JBC’s current
composition.23 As outlined in jurisprudence, it is well-settled that for locus standi to lie, petitioner must exhibit that he has
been denied, or is about to be denied, of a personal right or privilege to which he is entitled. Here, petitioner failed to
manifest his acceptance of his recommendation to the position of Chief Justice, thereby divesting him of a substantial interest
in the controversy. Without his name in the official list of applicants for the post, the respondents claim that there is no
personal stake on the part of petitioner that would justify his outcry of unconstitutionality. Moreover, the mere allegation that
this case is of transcendental importance does not excuse the waiver of the rule on locus standi, because, in the first place, the
case lacks the requisites therefor. The respondents also question petitioner’s belated filing of the petition.24 Being aware that
the current composition of the JBC has been in practice since 1994, petitioner’s silence for eighteen (18) years show that the
constitutional issue being raised before the Court does not comply with the "earliest possible opportunity" requirement.
Before addressing the above issues in seriatim, the Court deems it proper to first ascertain the nature of the petition. Pursuant
to the rule that the nature of an action is determined by the allegations therein and the character of the relief sought, the
Court views the petition as essentially an action for declaratory relief under Rule 63 of the 1997 Rules of Civil Procedure.25
The Constitution as the subject matter, and the validity and construction of Section 8 (1), Article VIII as the issue raised, the
petition should properly be considered as that which would result in the adjudication of rights sans the execution process
because the only relief to be granted is the very declaration of the rights under the document sought to be construed. It being
so, the original jurisdiction over the petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the fact that
only questions of law are raised in the petition, an action for declaratory relief is not among those within the original
jurisdiction of this Court as provided in Section 5, Article VIII of the Constitution.26
At any rate, due to its serious implications, not only to government processes involved but also to the sanctity of the
Constitution, the Court deems it more prudent to take cognizance of it. After all, the petition is also for prohibition under Rule
65 seeking to enjoin Congress from sending two (2) representatives with one (1) full vote each to the JBC.
The Courts’ power of judicial review, like almost all other powers conferred by the Constitution, is subject to several
limitations, namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case, such that
he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised
at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.27 Generally, a
party will be allowed to litigate only when these conditions sine qua non are present, especially when the constitutionality of
an act by a co-equal branch of government is put in issue.
Anent locus standi, the question to be answered is this: does the party possess a personal stake in the outcome of the
controversy as to assure that there is real, concrete and legal conflict of rights and duties from the issues presented before the
Court? In David v. Macapagal-Arroyo,28 the Court summarized the rules on locus standi as culled from jurisprudence. There, it
was held that 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.
In public suits, the plaintiff, representing the general public, asserts a "public right" in assailing an allegedly illegal official
action. The plaintiff may be a person who is affected no differently from any other person, and can be suing as a "stranger," or
as a "citizen" or "taxpayer." Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally
disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.29
In this case, petitioner seeks judicial intervention as a taxpayer, a concerned citizen and a nominee to the position of Chief
Justice of the Supreme Court. As a taxpayer, petitioner invokes his right to demand that the taxes he and the rest of the
citizenry have been paying to the government are spent for lawful purposes. According to petitioner, "since the JBC derives
financial support for its functions, operation and proceedings from taxes paid, petitioner possesses as taxpayer both right and
legal standing to demand that the JBC’s proceedings are not tainted with illegality and that its composition and actions do not
violate the Constitution."30
Notably, petitioner takes pains in enumerating past actions that he had brought before the Court where his legal standing was
sustained. Although this inventory is unnecessary to establish locus standi because obviously, not every case before the Court
exhibits similar issues and facts, the Court recognizes the petitioner’s right to sue in this case. Clearly, petitioner has the legal
standing to bring the present action because he has a personal stake in the outcome of this controversy.
The Court disagrees with the respondents’ contention that petitioner lost his standing to sue because he is not an official
nominee for the post of Chief Justice. While it is true that a "personal stake" on the case is imperative to have locus standi,
this is not to say that only official nominees for the post of Chief Justice can come to the Court and question the JBC
composition for being unconstitutional. The JBC likewise screens and nominates other members of the Judiciary. Albeit heavily
publicized in this regard, the JBC’s duty is not at all limited to the nominations for the highest magistrate in the land. A vast
number of aspirants to judicial posts all over the country may be affected by the Court’s ruling. More importantly, the legality
of the very process of nominations to the positions in the Judiciary is the nucleus of the controversy. The Court considers this
a constitutional issue that must be passed upon, lest a constitutional process be plagued by misgivings, doubts and worse,
mistrust. Hence, a citizen has a right to bring this question to the Court, clothed with legal standing and at the same time,
armed with issues of transcendental importance to society. The claim that the composition of the JBC is illegal and
unconstitutional is an object of concern, not just for a nominee to a judicial post, but for all citizens who have the right to seek
judicial intervention for rectification of legal blunders.
With respect to the question of transcendental importance, it is not difficult to perceive from the opposing arguments of the
parties that the determinants established in jurisprudence are attendant in this case: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in the questions being raised.31 The allegations of constitutional violations in this case are not empty attacks
on the wisdom of the other branches of the government. The allegations are substantiated by facts and, therefore, deserve an
evaluation from the Court. The Court need not elaborate on the legal and societal ramifications of the issues raised. It cannot
be gainsaid that the JBC is a constitutional innovation crucial in the selection of the magistrates in our judicial system.
The Composition of the JBC
Central to the resolution of the foregoing petition is an understanding of the composition of the JBC as stated in the first
paragraph of Section 8, Article VIII of the Constitution. It reads:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector.
From a simple reading of the above-quoted provision, it can readily be discerned that the provision is clear and unambiguous.
The first paragraph calls for the creation of a JBC and places the same under the supervision of the Court. Then it goes to its
composition where the regular members are enumerated: a representative of the Integrated Bar, a professor of law, a retired
member of the Court and a representative from the private sector. On the second part lies the crux of the present
controversy. It enumerates the ex officio or special members of the JBC composed of the Chief Justice, who shall be its
Chairman, the Secretary of Justice and "a representative of Congress."
As petitioner correctly posits, the use of the singular letter "a" preceding "representative of Congress" is unequivocal and
leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission had in mind,
that is, Congress may designate only one (1) representative to the JBC. Had it been the intention that more than one (1)
representative from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so provided.
One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation.32 It is a well-settled principle of
constitutional construction that the language employed in the Constitution must be given their ordinary meaning except
where technical terms are employed. As much as possible, the words of the Constitution 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.33 Verba legis non est recedendum – from the words of a statute there should be no departure.34
The raison d’ être for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional
provisions are couched express the objective sought to be attained;35 and second, because the Constitution is not primarily a
lawyer’s document but essentially that of the people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail. 36
Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible
of various meanings, its correct construction may be made clear and specific by considering the company of words in which it
is founded or with which it is associated.37 This is because a word or phrase in a statute is always used in association with
other words or phrases, and its meaning may, thus, be modified or restricted by the latter.38 The particular words, clauses and
phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be
considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. A statute must be so
construed as to harmonize and give effect to all its provisions whenever possible.39 In short, every meaning to be given to
each word or phrase must be ascertained from the context of the body of the statute since a word or phrase in a statute is
always used in association with other words or phrases and its meaning may be modified or restricted by the latter.
Applying the foregoing principle to this case, it becomes apparent that the word "Congress" used in Article VIII, Section 8(1) of
the Constitution is used in its generic sense. No particular allusion whatsoever is made on whether the Senate or the House of
Representatives is being referred to, but that, in either case, only a singular representative may be allowed to sit in the JBC.
The foregoing declaration is but sensible, since, as pointed out by an esteemed former member of the Court and consultant of
the JBC in his memorandum,40 "from the enumeration of the membership of the JBC, it is patent that each category of
members pertained to a single individual only."41
Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity,
contradiction, injustice, or defeat the clear purpose of the lawmakers.42 Not any of these instances, however, is present in the
case at bench. Considering that the language of the subject constitutional provision is plain and unambiguous, there is no need
to resort extrinsic aids such as records of the Constitutional Commission.
Nevertheless, even if the Court should proceed to look into the minds of the members of the Constitutional Commission, it is
undeniable from the records thereof that it was intended that the JBC be composed of seven (7) members only. Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about the appointments of members of the Supreme Court and judges of the
lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the
President with the confirmation of the Commission on Appointment. In this proposal, we would like to establish a new office,
a sort of a board composed of seven members called the Judicial and Bar Council. And while the President will still appoint the
member of the judiciary, he will be limited to the recommendees of this Council.
xxx xxx xxx
MR. RODRIGO. Of the seven members of the Judicial and Bar Council, the President appoints four of them who are regular
members.
xxx xxx xxx
MR. CONCEPCION. The only purpose of the Committee is to eliminate partisan politics.43
xxx xxx xxx
MR. RODRIGO. If my amendment is approved, then the provision will be exactly the same as the provision in the 1935
Constitution, Article VIII, Section 5.
xxx xxx xxx
If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a diminution of the
appointing power of the highest magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people
who are not elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on appointments.
The members of the Judiciary will be segregated from the rest of the government. Even a municipal judge cannot be
appointed by the President except upon recommendation or nomination of the three names by this Committee of seven
people, commissioners of the Commission on Elections, the COA and the Commission on Civil Service…even ambassadors,
generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of our
government in the appointment of high-ranking officials?
Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being effective
at all because this Council will be under the influence of the President. Four out of seven are appointees of the President and
they can be reappointed when their term ends. Therefore, they would be kowtow the President. A fifth member is the
Minister of Justice, an alter ego of the President. Another member represents the Legislature. In all probability, the controlling
part in the legislature belongs to the President and, therefore, this representative form the National Assembly is also under
the influence of the President. And may I say, Mr. Presiding Officer, that event the Chief Justice of the Supreme Court is an
appointee of the President. So it is futile he will be influence anyway by the President.44 [Emphases supplied]
At this juncture, it is worthy to note that the seven-member composition of the JBC serves a practical purpose, that is, to
provide a solution should there be a stalemate in voting. This underlying reason leads the Court to conclude that a single vote
may not be divided into half (1/2), between two representatives of Congress, or among any of the sitting members of the JBC
for that matter. This unsanctioned practice can possibly cause disorder and eventually muddle the JBC’s voting process,
especially in the event a tie is reached. The aforesaid purpose would then be rendered illusory, defeating the precise
mechanism which the Constitution itself created. While it would be unreasonable to expect that the Framers provide for every
possible scenario, it is sensible to presume that they knew that an odd composition is the best means to break a voting
deadlock.
The respondents insist that owing to the bicameral nature of Congress, the word "Congress" in Section 8(1), Article VIII of the
Constitution should be read as including both the Senate and the House of Representatives. They theorize that it was so
worded because at the time the said provision was being drafted, the Framers initially intended a unicameral form of
Congress.
Then, when the Constitutional Commission eventually adopted a bicameral form of Congress, the Framers, through oversight,
failed to amend Article VIII, Section 8 of the Constitution.45 On this score, the Court cites the insightful analysis of another
member of the Court and JBC consultant, retired Justice Consuelo Ynares-Santiago.46 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commission’s
desire "to have in the Council a representation for the major elements of the community." xxx Theex-officio members of the
Council consist of representatives from the three main branches of government while the regular members are composed of
various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-
officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting
members with the three ex-officio members having equal say in the choice of judicial nominees.
xxx xxx xxx
No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its
legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the
executive and judicial branches of government, is constitutionally treated as another co-equal branch of in the matter of its
representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and
House of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under our constitutional
scheme. While the latter justifies and, in fact, necessitates the separateness of the two houses of Congress as they relate
inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to
considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of
the Senate and the House of Representatives act as such for one branch and should not have any more quantitative
influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle
of equality among the three branches support this conclusion. [Emphases and underscoring supplied]
More than the reasoning provided in the above discussed rules of constitutional construction, the Court finds the above thesis
as the paramount justification of the Court’s conclusion that "Congress," in the context of JBC representation, should be
considered as one body. It is evident that the definition of "Congress" as a bicameral body refers to its primary function in
government - to legislate.47 In the passage of laws, the Constitution is explicit in the distinction of the role of each house in the
process. The same holds true in Congress’ non-legislative powers such as, inter alia, the power of appropriation,48 the
declaration of an existence of a state of war,49canvassing of electoral returns for the President and Vice-President,50 and
impeachment.51 In the exercise of these powers, the Constitution employs precise language in laying down the roles which a
particular house plays, regardless of whether the two houses consummate an official act by voting jointly or separately. An
inter-play between the two houses is necessary in the realization of these powers causing a vivid dichotomy that the Court
cannot simply discount. Verily, each house is constitutionally granted with powers and functions peculiar to its nature and
with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and
balances, to the other branches of government.
This, however, cannot be said in the case of JBC representation because no liaison between the two houses exists in the
workings of the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and
nomination of judicial officers. Hence, the term "Congress" must be taken to mean the entirelegislative department. A fortiori,
a pretext of oversight cannot prevail over the more pragmatic scheme which the Constitution laid with firmness, that is, that
the JBC has a seat for a single representative of Congress, as one of the co-equal branches of government.
Doubtless, the Framers of our Constitution intended to create a JBC as an innovative solution in response to the public clamor
in favor of eliminating politics in the appointment of members of the Judiciary.52 To ensure judicial independence, they
adopted a holistic approach and hoped that, in creating a JBC, the private sector and the three branches of government would
have an active role and equal voice in the selection of the members of the Judiciary.
Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than one voice speak,
whether with one full vote or one-half (1/2) a vote each, would, as one former congressman and member of the JBC put it,
"negate the principle of equality among the three branches of government which is enshrined in the Constitution."53
To quote one former Secretary of Justice:
The present imbalance in voting power between the Legislative and the other sectors represented in the JBC must be
corrected especially when considered vis-à-vis the avowed purpose for its creation, i.e., to insulate the appointments in the
Judiciary against political influence. By allowing both houses of Congress to have a representative in the JBC and by giving
each representative one (1) vote in the Council, Congress, as compared to the other members of the JBC, is accorded greater
and unwarranted influence in the appointment of judges.54[Emphasis supplied]
It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members only. Thus, any inclusion
of another member, whether with one whole vote or half (1/2) of it, goes against that mandate. Section 8(1), Article VIII of the
Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the
Judiciary is explicit. Any circumvention of the constitutional mandate should not be countenanced for the Constitution is the
supreme law of the land. The Constitution is the basic and paramount law to which all other laws must conform and to which
all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more
tailor itself to the whims and caprices of the government and the people who run it.55 Hence, any act of the government or of
a public official or employee which is contrary to the Constitution is illegal, null and void.
As to the effect of the Court’s finding that the current composition of the JBC is unconstitutional, it bears mentioning that as a
general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates
no office; it is inoperative as if it has not been passed at all.56 This rule, however, is not absolute. In the interest of fair play
under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They
are not nullified. In Planters Products, Inc. v. Fertiphil Corporation,57 the Court explained:
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play.1âwphi1 It
nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always
be erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on
the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in
double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.
Considering the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding
of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid.
At this point, the Court takes the initiative to clarify that it is not in a position to determine as to who should remain as the
sole representative of Congress in the JBC. This is a matter beyond the province of the Court and is best left to the
determination of Congress.
Finally, while the Court finds wisdom in respondents' contention that both the Senate and the House of Representatives
should be equally represented in the JBC, the Court is not in a position to stamp its imprimatur on such a construction at the
risk of expanding the meaning of the Constitution as currently worded. Needless to state, the remedy lies in the amendment
of this constitutional provision. The courts merely give effect to the lawgiver's intent. The solemn power and duty of the Court
to interpret and apply the law does not include the power to correct, by reading into the law what is not written therein.
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council IS declared
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one ( 1) member of
Congress will sit as a representative in its proceedings, in accordance with Section 8( 1 ), Article
VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
AQUILINO Q. PIMENTEL, JR., G.R. No. 187714
MANUEL B. VILLAR,
JOKER P. ARROYO, Present:
FRANCIS N. PANGILINAN, CORONA, C.J.,
PIA S. CAYETANO, and CARPIO,
ALAN PETER S. CAYETANO,
Petitioners, CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
- versus - DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
SENATE COMMITTEE OF THE
WHOLE represented by SENATE
PRESIDENT JUAN PONCE ENRILE, Promulgated:
Respondents. March 8, 2011
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for prohibition1 with prayer for issuance of a writ of preliminary injunction and/or temporary
restraining order filed by Senators Aquilino Q. Pimentel, Jr. (Senator Pimentel), Manuel B. Villar (Senator Villar), Joker P.
Arroyo, Francis N.Pangilinan, Pia S. Cayetano, and Alan Peter S. Cayetano (petitioners). Petitioners seek to enjoin the Senate
Committee of the Whole (respondent) from conducting further hearings on the complaint filed by Senator Maria Ana
Consuelo A.S. Madrigal (Senator Madrigal) against Senator Villar pursuant to Senate Resolution No. 706 (P.S. Resolution 706)
on the alleged double insertion of P200 million for the C-5 Road Extension Project in the 2008 General Appropriations Act.

The Antecedents

On 15 September 2008, Senator Panfilo Lacson (Senator Lacson) delivered a privilege speech entitled
“Kaban ng Bayan, Bantayan!”2 In his privilege speech, Senator Lacson called attention to the congressional insertion in the
2008 General Appropriations Act, particularly theP200 million appropriated for the construction of the President Carlos P.
Garcia Avenue Extension from Sucat Luzon Expressway toSucat Road in Parañaque City including Right-of-Way (ROW), and
another P200 million appropriated for the extension of C-5 road including ROW. Senator Lacson stated that C-5 is what was
formerly called President Carlos P. Garcia Avenue and that the second appropriation covers the same stretch –
from Sucat Luzon Expressway to Sucat Road in Parañaque City. Senator Lacson inquired from DBM Secretary Rolando Andaya,
Jr. about the double entry and was informed that it was on account of a congressional insertion. Senator Lacson further stated
that when he followed the narrow trail leading to the double entry, it led to Senator Villar, then the Senate President.

On 8 October 2008, Senator Madrigal introduced P.S. Resolution 706,3 the full text of which reads:

WHEREAS the Senate President has repeatedly and publicly “advocated” (sic) the construction of the C-5
Road/Pres. C.P. Garcia Avenue Extension linking Sucat Road in Parañaque City to the South Luzon Expressway;

WHEREAS it was discovered that there was a double insertion of P200 million for the C-5 Road Extension project
in the 2008 General Appropriations Act;

WHEREAS Committee on Finance Chair Sen. Juan Ponce Enrile confirmed that the double insertion for the C-5
Road Extension Project was made by the Senate President;

WHEREAS this double insertion is only the tip of the iceberg;

WHEREAS there is overwhelming evidence to show that the Senate President, from the time he was member of
the House of Representatives, used his influence on the executive to cause the realignment of the C-5 Road
 Extension project to ensure that his properties in Barangay San Dionisio, ParañaqueCity
and Barangays Pulang Lupa and Mayuno Uno, Las Piñas would be financially benefited by the construction of the
new road;

WHEREAS there is overwhelming evidence to show that the Senate President, through his corporations,
negotiated the sale of his properties as roads right of way to the government, the same properties affected by
the projects he proposed;

WHEREAS there is overwhelming evidence to show that the Senate President caused the sale of his landholdings
to government as a grossly overpriced cost prejudicial to other lot owners in the area, the government, and the
Filipino people;

WHEREAS there is overwhelming evidence to show that the Senate President, in the overpriced sale of another
property, used his power and influence to extort from the original landowner the profit made from the overprice
by the Villar owned corporations;

WHEREAS these acts of the Senate President are in direct violation of the Constitution, the Anti-Graft and Corrupt
Practices Act, the Code of Conduct and Ethical Standards of Public Officers;
WHEREAS the Senate President has violated the public trust of the people in order to serve his personal interests
thereby sacrificing the people’s welfare;

WHEREAS the illegal and unethical conduct of the Senate President has betrayed the trust of the people, and by
doing so has shamed the Philippine Senate;

WHEREAS it is incumbent upon the members of the Senate now to reclaim the people’s trust and confidence and
show that the illegal conduct of any of its member, even of its leaders, shall not go unpunished;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, TO DIRECT THE COMMITTEE ON ETHICS AND

PRIVILEGES TO INVESTIGATE THE CONDUCT OF SENATE PRESIDENT MANUEL B. VILLAR, JR. FOR USING HIS
POSITION OF POWER TO INFLUENCE PUBLIC OFFICIALS IN RELOCATING THE C-5 ROAD EXTENSION PROJECT TO
DELIBERATELY PASS THRU HIS PROPERTIES, AND TO NEGOTIATE THE OVERPRICED PURCHASE OF ROAD RIGHTS
OF WAY THRU SEVERAL PROPERTIES ALSO OWNED BY HIS CORPORATIONS REDOUNDING IN HUGE PERSONAL
FINANCIAL BENEFITS FOR HIM TO THE DETRIMENT OF THE FILIPINO PEOPLE, THEREBY RESULTING IN A BLATANT
CONFLICT OF INTEREST.

Adopted,

(Sgd.)
M.A. MADRIGAL4

On even date, P.S. Resolution 706 was referred to the Committee on Ethics and Privileges (Ethics Committee) which at that
time was composed of the following members:

Sen. Pia S. Cayetano - Chairperson

Sen. Loren Legarda - Member in lieu of Sen. Madrigal
Sen. Joker Arroyo - Member
Sen. Alan Peter Cayetano- Member
Sen. Miriam Defensor-Santiago- Member
Sen. Gregorio Honasan - Member
Sen. Panfilo Lacson - Inhibited and replaced by Sen. Rodolfo Biazon

On 17 November 2008, Senator Juan Ponce Enrile (Senator Enrile) was elected Senate President. The Ethics Committee was
reorganized with the election of Senator Lacson as Chairperson, and Senators Richard Gordon, Gregorio Honasan,
Loren Legarda, and Mar Roxas as members for the Majority. On 16 December 2008, Senator Lacson inquired whether the
Minority was ready to name their representatives to the Ethics Committee.5 After consultation with the members of the
Minority, Senator Pimentel informed the body that there would be no member from the Minority in the Ethics
Committee.6 On 26 January 2009, Senator Lacson reiterated his appeal to the Minority to nominate their representatives to
the Ethics Committee.7 Senator Pimentel stated that it is the stand of the Minority not to nominate any of their members to
the Ethics Committee, but he promised to convene a caucus to determine if the Minority’s decision on the matter is
final.8 Thereafter, the Senate adopted the Rules of the Senate Committee on Ethics and Privileges (Committee Rules) which
was published in the Official Gazette on 23 March 2009.9

On 20 April 2009, Senator Villar delivered a privilege speech10 where he stated that he would answer the accusations against
him on the floor and not before the Ethics Committee. On 27 April 2009, Senator Lacson delivered another privilege
speech11 where he stated that the Ethics Committee was not a kangaroo court. However, due to the accusation that the Ethics
Committee could not act with fairness on Senator Villar’s case, Senator Lacson moved that the responsibility of the Ethics
Committee be undertaken by the Senate, acting as a Committee of the Whole. The motion was approved with ten members
voting in favor, none against, and five abstentions.12

Respondent Senate Committee of the Whole conducted its hearings on 4 May 2009, with eleven Senators present, and on 7
May 2009, with eight Senators present. On both hearings, petitioners objected to the application of the Rules of the Ethics
Committee to the Senate Committee of the Whole. In particular, petitioners questioned the determination of the quorum. On
11 May 2009, petitioners proposed 11 amendments to the Rules of the Ethics Committee that would constitute the Rules of
the Senate Committee of the Whole, out of which three amendments were adopted. On 14 May 2009, Senator Pimentel
raised as an issue the need to publish the proposed amended Rules of the Senate Committee of the Whole. On even date,
respondent proceeded with the Preliminary Inquiry on P.S. Resolution 706. On 18 May 2009, the Chairman submitted a report
on the Preliminary Inquiry with a directive to all Senators to come up with a decision on the preliminary report on 21 May
2009. On 21 May 2009, respondent declared that there was substantial evidence to proceed with the adjudicatory hearing.
The preliminary conference was set on 26 May 2009.

Petitioners came to this Court for relief, raising the following grounds:

1. The transfer of the complaint against Senator Villar from the Ethics Committee to the Senate Committee of
the Whole is violative of SenatorVillar’s constitutional right to equal protection;
2. The Rules adopted by the Senate Committee of the Whole for the investigation of the complaint filed by
Senator Madrigal against Senator Villar isviolative of Senator Villar’s right to due process and of the majority
quorum requirement under Art. VI, Sec. 16(2) of the Constitution; and
3. The Senate Committee of the Whole likewise violated the due process clause of the Constitution when it
refused to publish the Rules of the Senate Committee of the Whole in spite of its own provision [which]
require[s] its effectivity upon publication.13

In its Comment, respondent argues that:

1. The instant petition should be dismissed for failure to join or implead an indispensable party.
In the alternative, the instant petition should be archived until such time that the said
indispensable party has been joined or impleaded and afforded the opportunity to be heard;
2. There was no grave abuse of discretion on the part of respondent Committee;
3. Petitioners are not entitled to a writ of prohibition for failure to prove grave abuse of
discretion on the part of respondent Committee of the Whole;
4. The principle of separation of powers must be upheld;
5. The instant petition must be dismissed for being premature. Petitioners failed to observe the
doctrine or primary jurisdiction or prior resort;
6. It is within the power of Congress to discipline its members for disorderly behavior;
7. The determination of what constitutes disorderly behavior is a political question which
exclusively pertains to Congress;
8. The Internal Rules of the Senate are not subject to judicial review in the absence of grave
abuse of discretion; [and]
9. The Rules of the Ethics Committee, which have been duly published and adopted[,] allow the adoption of
supplementary rules to govern adjudicatory hearings.14

The Issues

The issues for the Court’s resolution are the following:

1. Whether Senator Madrigal, who filed the complaint against Senator Villar, is an
indispensable party in this petition;
2. Whether the petition is premature for failure to observe the doctrine of primary jurisdiction
or prior resort;
3. Whether the transfer of the complaint against Senator Villar from the Ethics Committee to
the Senate Committee of the Whole isviolative of Senator Villar’s right to equal protection;
4. Whether the adoption of the Rules of the Ethics Committee as Rules of the Senate
Committee of the Whole is a violative of SenatorVillar’s right to due process and of the
majority quorum requirement under Art. VI, Section 16(2) of the Constitution; and
5. Whether publication of the Rules of the Senate Committee of the Whole is required for
their effectivity.

The Ruling of this Court

Indispensable Party

Section 7, Rule 3 of the 1997 Rules of Civil Procedure provides:

 SEC. 7 – Compulsory joinder of indispensable parties. - Parties in interest without whom no final
determination can be had of an action shall be joined as plaintiffs or defendants.

The test to determine if a party is an indispensable party is as follows:

An indispensable party is a party who has an interest in the controversy or subject matter that a final
adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who has not
only an interest in the subject matter of the controversy, but also has an interest of such nature that a final
decree cannot be made without affecting his interest or leaving the controversy in such a condition that its
final determination may be wholly inconsistent with equity and good conscience. It has also been considered
that an indispensable party is a person in whose absence there cannot be a determination between the
parties already before the court which is effective, complete or equitable. Further, an indispensable party is
one who must be included in an action before it may properly go forward.

A person who is not an indispensable party, however, if his interest in the controversy or subject matter is
separable from the interest of the other parties, so that it will not necessarily be directly or injuriously
affected by a decree which does complete justice between them. Also, a person is not an indispensable party
if his presence would merely permit a complete relief between him and those already parties to the action,
or if he has no interest in the subject matter of the action. It is not a sufficient reason to declare a person to
be an indispensable party that his presence will avoidmultiple litigation.15
In this case, Senator Madrigal is not an indispensable party to the petition before the Court. While it may be true that she has
an interest in the outcome of this case as the author of P.S. Resolution 706, the issues in this case are matters of jurisdiction
and procedure on the part of the Senate Committee of the Whole which can be resolved without affecting Senator Madrigal’s
interest. The nature of Senator Madrigal’s interest in this case is not of the nature that this case could not be resolved without
her participation.

Doctrine of Primary Jurisdiction

Respondent asserts that the doctrine of primary jurisdiction “simply calls for the determination of administrative questions,
which are ordinarily questions of fact, by administrative agencies rather than by courts of justice.”16 Citing Pimentel v.
HRET,17 respondent avers that primary recourse of petitioners should have been to the Senate and that this Court must
uphold the separation of powers between the legislative and judicial branches of the government.

The doctrine of primary jurisdiction does not apply to this case. The Court has ruled:

x x x It may occur that the Court has jurisdiction to take cognizance of a particular case, which means that the
matter involved is also judicial in character. However, if the case is such that its determination requires the
expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or
intricate questions of fact are involved, then relief must first be obtained in an administrative proceeding
before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of the
court. x x x18

The issues presented here do not require the expertise, specialized skills and knowledge of respondent for their resolution. On
the contrary, the issues here are purely legal questions which are within the competence and jurisdiction of the Court, and
not an administrative agency or the Senate to resolve.19

As regards respondent’s invocation of separation of powers, the Court reiterates that “the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in
the discharge by each of that part of the governmental power assigned to it by the sovereign people.”20 Thus, it has been held
that “the power of judicial review is not so much power as it is [a] duty imposed on this Court by the Constitution and that we
would be remiss in the performance of that duty if we decline to look behind the barriers set by the principle of separation of
powers.”21 The Court, therefore, is not precluded from resolving the legal issues raised by the mere invocation by respondent
of the doctrine of separation of powers. On the contrary, the resolution of the legal issues falls within the exclusive
jurisdiction of this Court.

Transfer of the Complaint from the Ethics Committee

to the Senate Committee on the Whole

Petitioners allege that the transfer of the complaint against Senator Villar to the Senate Committee of the Whole violates his
constitutional right to equal protection. Petitioners allege that the Senate Committee of the Whole was constituted solely for
the purpose of assuming jurisdiction over the complaint against Senator Villar. Petitioners further allege that the act was
discriminatory and removed SenatorVillar’s recourse against any adverse report of the Ethics Committee to the Senate as a
body.

We do not agree with petitioners.

Reviewing the events that led to the constitution of the Senate Committee of the Whole, the Court notes that upon the
election of SenatorEnrile as Senate President on 17 November 2008, the Ethics Committee was also reorganized.
Senator Lacson, who first called the Senate’s attention to the alleged irregularities committed by Senator Villar, was elected as
Chairperson. On 16 December 2008, when Senator Lacson inquired whether the Minority was ready to name their
representatives to the Ethics Committee, Senator Pimentel informed the body that there would be no member from the
Minority in the Ethics Committee. On 26 January 2009, Senator Lacsonreiterated his appeal to the Minority to nominate their
representatives to the Ethics Committee. Senator Pimentel informed him that it is the stand of the Minority not to nominate
any of their members to the Ethics Committee. Senator Pimentel promised to convene a caucus to determine if the Minority’s
decision on the matter is final but the records did not show that a caucus was convened.

On 20 April 2009, Senator Villar delivered a privilege speech where he stated that he would answer the accusations against
him on the floor and not before the Ethics Committee. It was because of the accusation that the Ethics Committee could not
act with fairness on Senator Villar’s case that Senator Lacson moved that the responsibility of the Ethics Committee be
undertaken by the Senate acting as a Committee of the Whole, which motion was approved with ten members voting in favor,
none against, and five abstentions.
The Rules of the Ethics Committee provide that “all matters relating to the conduct, rights, privileges, safety, dignity, integrity
and reputation of the Senate and its Members shall be under the exclusive jurisdiction of the Senate Committee on Ethics and
Privileges.”22However, in this case, the refusal of the Minority to name its members to the Ethics Committee stalled the
investigation. In short, while ordinarily an investigation about one of its members’ alleged irregular or unethical conduct is
within the jurisdiction of the Ethics Committee, the Minority effectively prevented it from pursuing the investigation when
they refused to nominate their members to the Ethics Committee. Even Senator Villar called the Ethics Committee a kangaroo
court and declared that he would answer the accusations against him on the floor and not before the Ethics Committee. Given
the circumstances, the referral of the investigation to the Committee of the Whole was an extraordinary remedy undertaken
by the Ethics Committee and approved by a majority of the members of the Senate.
Adoption of the Rules of the Ethics Committee
by the Senate Committee of the Whole

Petitioners allege that the adoption of the Rules of the Ethics Committee by the Senate Committee of the Whole is violative of
SenatorVillar’s right to due process.

We do not agree.

Again, we reiterate that, considering the circumstances of this case, the referral of the investigation by the Ethics Committee
to the Senate Committee of the Whole is an extraordinary remedy that does not violate Senator Villar’s right to due process.
In the same manner, the adoption by the Senate Committee of the Whole of the Rules of the Ethics Committee does not
violate Senator Villar’s right to due process.

The Constitutional right of the Senate to promulgate its own rules of proceedings has been recognized and affirmed by this
Court. Thus:

First. Section 16(3), Article VI of the Philippine Constitution states: “Each House shall determine the rules of
its proceedings.”

This provision has been traditionally construed as a grant of full discretionary authority to the House of
Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power
is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary
and improvident use of the power as will constitute a denial of due process.

x x x. The issue partakes of the nature of a political question which, under the Constitution, is to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. Further, pursuant to his constitutional
grant of virtually unrestricted authority to determine its own rules, the Senate is at liberty to alter or modify
these rules at any time it may see fit, subject only to the imperatives of quorum, voting and publication.23

The only limitation to the power of Congress to promulgate its own rules is the observance of quorum, voting, and publication
when required. As long as these requirements are complied with, the Court will not interfere with the right of Congress to
amend its own rules.

Prior Publication
Petitioners assail the non-publication of the Rules of the Senate Committee of the Whole. Respondent counters that
publication is not necessary because the Senate Committee of the Whole merely adopted the Rules of the Ethics Committee
which had been published in the Official Gazette on 23 March 2009. Respondent alleges that there is only one set of Rules
that governs both the Ethics Committee and the Senate Committee of the Whole.
In Neri v. Senate Committee on Accountability of Public Officers and Investigations,24 the Court declared void unpublished
rules of procedure in Senate inquiries insofar as such rules affect the rights of witnesses. The Court cited Section 21, Article VI
of the Constitution which mandates:

Sec. 21. The Senate or the House of Representatives or any of its respective Committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Emphasis supplied)

The Court explained in the Resolution25 denying the motion for reconsideration:
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to
publish the rules of its legislative inquiries in each Congress or otherwise make the published rules clearly
state that the same shall be effective in the subsequent Congresses or until they are amended or repealed to
sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the
next Congress, it could have easily adopted the same language it had used in its main rules
regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of
witnesses should be considered null and void, considering that the rationale for the publication is to
protect the rights of the witnesses as expressed in Section 21, Article VI of the Constitution. Sans such
violation, orders and proceedings are considered valid and effective.26 (Emphasis supplied)

In the recent case of Gutierrez v. The House of Representatives Committee on Justice, et al.,27 the Court further clarified:

x x x inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance in the
Constitution where there is a categorical directive to duly publish a set of rules of procedure. Significantly
notable in Neri is that with respect to the issue of publication, the Court anchored its ruling on
the 1987 Constitution’s directive, without any reliance on or reference to the 1986 case
of Tañada v. Tuvera. Tañada naturally could neither have interpreted a forthcoming 1987 Constitution nor had
kept a tight rein on the Constitution’s intentions as expressed through the allowance of either a categorical term
or a general sense of making known the issuances.28

The Constitution does not require publication of the internal rules of the House or Senate. Since rules of the House or the
Senate that affect only their members are internal to the House or Senate, such rules need not be published, unless such
rules expressly provide for their publication before the rules can take effect.

In this case, the proceedings before the Senate Committee of the Whole affect only members of the Senate since the
proceedings involve the Senate’s exercise of its disciplinary power over one of its members. Clearly, the Rules of the Senate
Committee of the Whole are internal to the Senate. However, Section 81, Rule 15 of the Rules of the Senate Committee of the
Whole provides:

Sec. 81. EFFECTIVITY. These Rules shall be effective after publication in the Official Gazette or in a newspaper of
general circulation.29

Hence, in this particular case, the Rules of the Senate Committee of the Whole itself provide that the Rules must be published
before the Rules can take effect. Thus, even if publication is not required under the Constitution, publication of the Rules of
the Senate Committee of the Whole is required because the Rules expressly mandate their publication. The majority of the
members of the Senate approved the Rules of the Senate Committee of the Whole, and the publication requirement which
they adopted should be considered as the will of the majority. Respondent cannot dispense with the publication requirement
just because the Rules of the Ethics Committee had already been published in the Official Gazette. To reiterate, the Rules of
the Senate Committee of the Whole expressly require publication before the Rules can take effect. To comply with due
process requirements, the Senate must follow its own internal rules if the rights of its own members are affected.

Incidentally, we note that Section 4, Rule 1 of the Rules of the Senate Committee of the Whole30 is an exact reproduction of
Section 4, Rule 1 of the Rules of the Senate Committee on Ethics and Privileges31 which states that the Ethics Committee shall
be composed of seven members, contrary to the fact that the Senate Committee of the Whole consists of all members of the
Senate. In addition, Section 5(B), Rule 1 of the Rules of the Senate Committee of the Whole32 is an exact reproduction of
Section 5(B), Rule 1 of the Rules of the Senate Committee on Ethics and Privileges33 which states that only two members of
the Ethics Committee shall constitute a quorum, contrary to respondent’s allegation in its Comment that eight members of
the Senate Committee of the Whole shall constitute a quorum.34
However, if the Senate is constituted as a Committee of the Whole, a majority of the Senate is required to constitute a
quorum to do business pursuant to Section 16(2), Article VI of the Constitution.35 Otherwise, there will be a circumvention of
this express provision of the Constitution on quorum requirement. Obviously, the Rules of the Senate Committee of the
Whole require modification to comply with requirements of quorum and voting which the Senate must have overlooked in
this case. In any event, in case of conflict between the Rules of the Senate Committee of the Whole and the Constitution, the
latter will of course prevail.

WHEREFORE, we GRANT the petition in part. The referral of the complaint by the Committee on Ethics and Privileges to the
Senate Committee of the Whole shall take effect only upon publication of the Rules of the Senate Committee of the Whole.
SO ORDERED.
 EN BANC

LAWYERS AGAINST MONOPOLY G.R. No. 164987

AND POVERTY (LAMP), represented by its
Chairman Present:
and counsel, CEFERINO PADUA, Members,
ALBERTO ABELEDA, JR., ELEAZAR ANGELES, CORONA, C.J.,
GREGELY FULTON ACOSTA, VICTOR AVECILLA, CARPIO,
GALILEO BRION, ANATALIA BUENAVENTURA, VELASCO, JR.,
EFREN CARAG, PEDRO CASTILLO, NAPOLEON LEONARDO-DE CASTRO,
CORONADO, ROMEO ECHAUZ, ALFREDO BRION,
DE GUZMAN, ROGELIO KARAGDAG, JR., MARIA LUZ PERALTA,
ARZAGA-MENDOZA, LEO LUIS MENDOZA, ANTONIO BERSAMIN,
P. PAREDES, AQUILINO PIMENTEL III, MARIO DEL CASTILLO,
REYES, EMMANUEL SANTOS, TERESITA SANTOS, ABAD,
RUDEGELIO TACORDA, SECRETARY GEN. ROLANDO VILLARAMA, JR.,
ARZAGA, Board of Consultants, JUSTICE ABRAHAM PEREZ,
SARMIENTO, SEN. AQUILINO PIMENTEL, JR., and MENDOZA,
BARTOLOME FERNANDEZ, JR., SERENO,
Petitioners, REYES,
PERLAS-BERNABE, JJ.

- versus –

THE SECRETARY OF BUDGET AND MANAGEMENT,

THE TREASURER OF THE PHILIPPINES, THE
COMMISSION ON AUDIT, and THE PRESIDENT OF
THE SENATE and the SPEAKER OF THE HOUSE OF
REPRESENTATIVES in representation of the
Members
of the Congress,
Respondents. Promulgated:

April 24, 2012

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

DECISION

MENDOZA, J.:

For consideration of the Court is an original action for certiorari assailing the constitutionality and legality of
theimplementation of the Priority Development Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the
General Appropriations Act for 2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and Poverty (LAMP), a group of
lawyers who have banded together with a mission of dismantling all forms of political, economic or social monopoly in the
country,[1] also sought the issuance of a writ of preliminary injunction or temporary restraining order to enjoin respondent
Secretary of the Department of Budget and Management (DBM) from making, and, thereafter, releasing budgetary allocations
to individual members of Congress as “pork barrel” funds out of PDAF. LAMP likewise aimed to stop the National Treasurer
and the Commission on Audit (COA) from enforcing the questioned provision.

On September 14, 2004, the Court required respondents, including the President of the Senate and the Speaker of the
House of Representatives, to comment on the petition. On April 7, 2005, petitioner filed a Reply thereto.[2] On April 26, 2005,
both parties were required to submit their respective memoranda.

The GAA of 2004 contains the following provision subject of this petition:

PRIORITY DEVELOPMENT ASSISTANCE FUND

For fund requirements of priority development programs and projects, as indicated hereunder –
₱8,327,000,000.00

Xxxxx
 Special Provision

1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority
programs and projects or to fund the required counterpart for foreign-assisted programs and projects:
PROVIDED, That such amount shall be released directly to the implementing agency or Local Government
Unit concerned: PROVIDED, FURTHER, That the allocations authorized herein may be realigned to any
expense class, if deemed necessary: PROVIDED FURTHERMORE, That a maximum of ten percent (10%) of the
authorized allocations by district may be used for procurement of rice and other basic commodities which
shall be purchased from the National Food Authority.

Petitioner’s Position

According to LAMP, the above provision is silent and, therefore, prohibits an automatic or direct allocation of lump
sums to individual senators and congressmen for the funding of projects. It does not empower individual Members of
Congress to propose, select and identify programs and projects to be funded out of PDAF. “In previous GAAs, said allocation
and identification of projects were the main features of the ‘pork barrel’ system technically known as Countrywide
Development Fund (CDF). Nothing of the sort is now seen in the present law (R.A. No. 9206 of CY 2004). [3] In its
memorandum, LAMP insists that “[t]he silence in the law of direct or even indirect participation by members of Congress
betrays a deliberate intent on the part of the Executive and the Congress to scrap and do away with the ‘pork barrel’
system.”[4] In other words, “[t]he omission of the PDAF provision to specify sums as ‘allocations’ to individual Members of
Congress is a ‘casus omissus’ signifying an omission intentionally made by Congress that this Court is forbidden to
supply.”[5] Hence, LAMP is of the conclusion that “the pork barrel has become legally defunct under the present state of GAA
2004.”[6]

LAMP further decries the supposed flaws in the implementation of the provision, namely: 1) the DBM illegally made
and directly released budgetary allocations out of PDAF in favor of individual Members of Congress; and 2) the latter do not
possess the power to propose, select and identify which projects are to be actually funded by PDAF.

For LAMP, this situation runs afoul against the principle of separation of powers because in receiving and, thereafter,
spending funds for their chosen projects, the Members of Congress in effect intrude into an executive function. In other
words, they cannot directly spend the funds, the appropriation for which was made by them. In their individual capacities, the
Members of Congress cannot “virtually tell or dictate upon the Executive Department how to spend taxpayer’s
money.[7] Further, the authority to propose and select projects does not pertain to legislation. “It is, in fact, a non-legislative
function devoid of constitutional sanction,”[8] and, therefore, impermissible and must be considered nothing less than
malfeasance. The proposal and identification of the projects do not involve the making of laws or the repeal and amendment
thereof, which is the only function given to the Congress by the Constitution. Verily, the power of appropriation granted to
Congress as a collegial body, “does not include the power of the Members thereof to individually propose, select and identify
which projects are to be actually implemented and funded - a function which essentially and exclusively pertains to the
Executive Department.”[9] By allowing the Members of Congress to receive direct allotment from the fund, to propose and
identify projects to be funded and to perform the actual spending of the fund, the implementation of the PDAF provision
becomes legally infirm and constitutionally repugnant.

Respondents’ Position

For their part, the respondents[10] contend that the petition miserably lacks legal and factual grounds. Although they
admit that PDAF traced its roots to CDF,[11] they argue that the former should not be equated with “pork barrel,” which has
gained a derogatory meaning referring “to government projects affording political opportunism.”[12] In the petition, no proof
of this was offered. It cannot be gainsaid then that the petition cannot stand on inconclusive media reports, assumptions and
conjectures alone. Without probative value, media reports cited by the petitioner deserve scant consideration especially the
accusation that corrupt legislators have allegedly proposed cuts or slashes from their pork barrel. Hence, the Court should
decline the petitioner’s plea to take judicial notice of the supposed iniquity of PDAF because there is no concrete proof that
PDAF, in the guise of “pork barrel,” is a source of “dirty money” for unscrupulous lawmakers and other officials who tend to
misuse their allocations. These “facts” have no attributes of sufficient notoriety or general recognition accepted by the public
without qualification, to be subjected to judicial notice. This applies, a fortiori, to the claim that Members of Congress are
beneficiaries of commissions (kickbacks) taken out of the PDAF allocations and releases and preferred by favored contractors
representing from 20% to 50% of the approved budget for a particular project. [13] Suffice it to say, the perceptions of LAMP
on the implementation of PDAF must not be based on mere speculations circulated in the news media preaching the evils of
pork barrel. Failing to present even an iota of proof that the DBM Secretary has been releasing lump sums from PDAF directly
or indirectly to individual Members of Congress, the petition falls short of its cause.

Likewise admitting that CDF and PDAF are “appropriations for substantially similar, if not the same, beneficial
purposes,” [14]the respondents invoke Philconsa v. Enriquez,[15] where CDF was described as an imaginative and innovative
process or mechanism of implementing priority programs/projects specified in the law. In Philconsa, the Court upheld the
authority of individual Members of Congress to propose and identify priority projects because this was merely
recommendatory in nature. In said case, it was also recognized that individual members of Congress far more than the
President and their congressional colleagues were likely to be knowledgeable about the needs of their respective constituents
and the priority to be given each project.

The Issues

The respondents urge the Court to dismiss the petition for its failure to establish factual and legal basis to support its
claims, thereby lacking an essential requisite of judicial review—an actual case or controversy.

The Court’s Ruling

To the Court, the case boils down to these issues: 1) whether or not the mandatory requisites for the exercise of
judicial review are met in this case; and 2) whether or not the implementation of PDAF by the Members of Congress
is unconstitutional and illegal.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must
have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.[16]

An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are
centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or
indeed may not occur at all. Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues
for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction,
the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging it.[17]

In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and
taxpayers. According to LAMP, the practice of direct allocation and release of funds to the Members of Congress and the
authority given to them to propose and select projects is the core of the law’s flawed execution resulting in a serious
constitutional transgression involving the expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be
adversely affected by this. A finding of unconstitutionality would necessarily be tantamount to a misapplication of public
funds which, in turn, cause injury or hardship to taxpayers. This affords “ripeness” to the present controversy.

Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning
legislative or executive action. The possibility of constitutional violations in the implementation of PDAF surely involves the
interplay of legal rights susceptible of judicial resolution. For LAMP, this is the right to recover public funds possibly misapplied
by no less than the Members of Congress. Hence, without prejudice to other recourse against erring public officials,
allegations of illegal expenditure of public funds reflect a concrete injury that may have been committed by other branches of
government before the court intervenes. The possibility that this injury was indeed committed cannot be discounted. The
petition complains of illegal disbursement of public funds derived from taxation and this is sufficient reason to say that there
indeed exists a definite, concrete, real or substantial controversy before the Court.

Anent locus standi, “the rule is that the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement.[18] The
gist of the question of standing is whether a party alleges “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.”[19] In public suits, the plaintiff, representing the general public, asserts a
“public right” in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from
any other person, and could be suing as a “stranger,” or as a “citizen” or “taxpayer.”[20] Thus, taxpayers have been allowed to
sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law.[21] Of greater import
than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by
the enforcement of an invalid statute.[22]
Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers’ suits
is established. Thus, in the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an
invalid or unconstitutional law, LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works[23] is
authority in support of the petitioner:

In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only persons individually affected, but
also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation
and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [11
Am. Jur. 761, Emphasis supplied.]
 Lastly, the Court is of the view that the petition poses issues impressed with paramount public interest. The
ramification of issues involving the unconstitutional spending of PDAF deserves the consideration of the Court, warranting the
assumption of jurisdiction over the petition.

Now, on the substantive issue.

The powers of government are generally divided into three branches: the Legislative, the Executive and the
Judiciary. Each branch is supreme within its own sphere being independent from one another and it is this supremacy which
enables the courts to determine whether a law is constitutional or unconstitutional.[24] The Judiciary is the final arbiter on the
question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of
jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.[25]

With these long-established precepts in mind, the Court now goes to the crucial question: In allowing the direct
allocation and release of PDAF funds to the Members of Congress based on their own list of proposed projects, did the
implementation of the PDAF provision under the GAA of 2004 violate the Constitution or the laws?

The Court rules in the negative.

In determining whether or not a statute is unconstitutional, the Court does not lose sight of the presumption of
validity accorded to statutory acts of Congress. In Fariñas v. The Executive Secretary,[26] the Court held that:

Every statute is presumed valid. The presumption is that the legislature intended to enact a valid,
sensible and just law and one which operates no further than may be necessary to effectuate the specific
purpose of the law. Every presumption should be indulged in favor of the constitutionality and the burden
of proof is on the party alleging that there is a clear and unequivocal breach of the Constitution.

To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful,
breach of the Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain
legislation because “to invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.”[27] This presumption of constitutionality can be
overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a
conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that
the challenged act must be struck down.[28]

The petition is miserably wanting in this regard. LAMP would have the Court declare the unconstitutionality of the
PDAF’s enforcement based on the absence of express provision in the GAA allocating PDAF funds to the Members of Congress
and the latter’s encroachment on executive power in proposing and selecting projects to be funded by PDAF. Regrettably,
these allegations lack substantiation. No convincing proof was presented showing that, indeed, there were direct releases of
funds to the Members of Congress, who actually spend them according to their sole discretion. Not even a documentation of
the disbursement of funds by the DBM in favor of the Members of Congress was presented by the petitioner to convince the
Court to probe into the truth of their claims. Devoid of any pertinent evidentiary support that illegal misuse of PDAF in the
form of kickbacks has become a common exercise of unscrupulous Members of Congress, the Court cannot indulge the
petitioner’s request for rejection of a law which is outwardly legal and capable of lawful enforcement. In a case like this, the
Court’s hands are tied in deference to the presumption of constitutionality lest the Court commits unpardonable judicial
legislation. The Court is not endowed with the power of clairvoyance to divine from scanty allegations in pleadings where
justice and truth lie.[29] Again, newspaper or electronic reports showing the appalling effects of PDAF cannot be appreciated
by the Court, “not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be
established in accordance with the rules of evidence.”[30]

Hence, absent a clear showing that an offense to the principle of separation of powers was committed, much less
tolerated by both the Legislative and Executive, the Court is constrained to hold that a lawful and regular government
budgeting and appropriation process ensued during the enactment and all throughout the implementation of the GAA of
2004. The process was explained in this wise, in Guingona v. Carague:[31]

1. Budget preparation. The first step is essentially tasked upon the Executive Branch and covers the
estimation of government revenues, the determination of budgetary priorities and activities within the
constraints imposed by available revenues and by borrowing limits, and the translation of desired priorities
and activities into expenditure levels.
Budget preparation starts with the budget call issued by the Department of Budget and
Management. Each agency is required to submit agency budget estimates in line with the requirements
consistent with the general ceilings set by the Development Budget Coordinating Council (DBCC).
With regard to debt servicing, the DBCC staff, based on the macro-economic projections of interest
rates (e.g. LIBOR rate) and estimated sources of domestic and foreign financing, estimates debt service levels.
Upon issuance of budget call, the Bureau of Treasury computes for the interest and principal payments for
the year for all direct national government borrowings and other liabilities assumed by the same.
 2. Legislative authorization. –– At this stage, Congress enters the picture and deliberates or acts on
the budget proposals of the President, and Congress in the exercise of its own judgment and
wisdom formulates an appropriation act precisely following the process established by the Constitution,
which specifies that no money may be paid from the Treasury except in accordance with an appropriation
made by law.
xxx
3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the
various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of
work and financial plans for individual activities, the continuing review of government fiscal position, the
regulation of funds releases, the implementation of cash payment schedules, and other related activities
comprise this phase of the budget cycle.
4. Budget accountability. The fourth phase refers to the evaluation of actual performance and
initially approved work targets, obligations incurred, personnel hired and work accomplished are compared
with the targets set at the time the agency budgets were approved.

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that
appropriation bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur
with amendments.[32]While the budgetary process commences from the proposal submitted by the President to Congress, it is
the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own
judgment, wisdom and purposes. Like any other piece of legislation, the appropriation act may then be susceptible to
objection from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under
the domain of the Executive branch which deals with theoperational aspects of the cycle including the allocation and release
of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of payment
schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. “The DBM lays down
the guidelines for the disbursement of the fund. The Members of Congress are then requested by the President to
recommend projects and programs which may be funded from the PDAF. The list submitted by the Members of Congress is
endorsed by the Speaker of the House of Representatives to the DBM, which reviews and determines whether such list of
projects submitted are consistent with the guidelines and the priorities set by the Executive.”[33] This demonstrates the power
given to the President to execute appropriation laws and therefore, to exercise the spending per se of the budget.

As applied to this case, the petition is seriously wanting in establishing that individual Members of Congress receive and
thereafter spend funds out of PDAF. Although the possibility of this unscrupulous practice cannot be entirely discounted,
surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the
Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld
in Philconsa. This remains as valid case law. The Court sees no need to review or reverse the standing pronouncements in the
said case. So long as there is no showing of a direct participation of legislators in the actual spending of the budget, the
constitutional boundaries between the Executive and the Legislative in the budgetary process remain intact.

While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated by a piece of valid
legislation cannot be used as a tool to overstep constitutional limits and arbitrarily annul acts of Congress. Again, “all
presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable
basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that
the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of
the constitution in favor of the constitutionality of legislation should be adopted.”[34]

There can be no question as to the patriotism and good motive of the petitioner in filing this petition. Unfortunately,
the petition must fail based on the foregoing reasons.

WHEREFORE, the petition is DISMISSED without pronouncement as to costs.

SO ORDERED.
 SILVERIO R. TAGOLINO, Petitioner, v. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY MARIE TORRES-
GOMEZ, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court is the March 22, 2012 Decision1 of
the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 10-031 (QW) which declared the validity of private
respondent Lucy Marie Torres-Gomez's substitution as the Liberal Party's replacement candidate for the position of Leyte
Representative (Fourth Legislative District) in lieu of Richard Gomez.
The Facts
On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy2 (CoC) with the Commission on Elections
(COMELEC), seeking congressional office as Representative for the Fourth Legislative District of Leyte under the ticket of the
Liberal Party. Subsequently, on December 6, 2009, one of the opposing candidates, Buenaventura Juntilla (Juntilla), filed a
Verified Petition,3 alleging that Richard, who was actually a resident of College Street, East Greenhills, San Juan City, Metro
Manila, misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In this regard, Juntilla asserted
that Richard failed to meet the one (1) year residency requirement under Section 6, Article VI4 of the 1987 Philippine
Constitution (Constitution) and thus should be declared disqualified/ineligible to run for the said office. In addition, Juntilla
prayed that Richard's CoC be denied due course and/or cancelled.5chanroblesvirtualawlibrary
On February 17, 2010, the COMELEC First Division rendered a Resolution6 granting Juntilla's petition without any qualification.
The dispositive portion of which reads:chanroblesvirtualawlibrary
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVE, to GRANT the Petition to Disqualify
Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I.
GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency
requirement.
SO ORDERED.
Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC En Banc through a Resolution dated
May 4, 2010.7 Thereafter, in a Manifestation of even date, Richard accepted the said resolution with finality "in order to
enable his substitute to facilitate the filing of the necessary documents for substitution."8chanroblesvirtualawlibrary
On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC9 together with a Certificate of Nomination and
Acceptance10 from the Liberal Party endorsing her as the party's official substitute candidate vice her husband, Richard, for
the same congressional post. In response to various letter-requests submitted to the COMELEC's Law Department (Law
Department), the COMELEC En Banc, in the exercise of its administrative functions, issued Resolution No. 889011 on May 8,
2010, approving, among others, the recommendation of the said department to allow the substitution of private respondent.
The recommendation reads:chanroblesvirtualawlibrary
STUDY AND OBSERVATION
On the same date, this Department received an Opposition from Mr. Buenaventura O. Juntilla, thru his counsel, opposing the
candidacy of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr. Richard I. Gomez.
The crux of the opposition stemmed from the issue that there should be no substitution because there is no candidate to
substitute for.
It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks for disqualification of
candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy:chanroblesvirtualawlibrary
Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify
Candidate for Lack of Qualification filed x x x against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a
candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement.
The said resolution was affirmed by the Commission En Banc on May 04, 2010.
The disqualification of a candidate does not automatically cancel one's certificate of candidacy, especially when it is
nominated by a political party. In effect, the political party is still allowed to substitute the candidate whose candidacy was
declared disqualified. After all, the right to substitute is a privilege given to a political party to exercise and not dependent
totally to a candidate.
Nonetheless, in case of doubt, the same must always be resolved to the qualification of a candidate to run in the public office.
The substitution complied with the requirements provided under Section 12 in relation to Section 13 of Comelec Resolution
No. 8678 dated October 6, 2009.
xxx
In view of the foregoing, the Law Department RECOMMENDS the following:chanroblesvirtualawlibrary
xxx
2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ: (Emphasis and
underscoring supplied)
xxx
The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for Reconsideration12(May 9, 2010 Motion) of
the above-mentioned COMELEC En Banc resolution
Pending resolution of Juntilla's May 9, 2010 Motion, the national and local elections were conducted as scheduled on May 10,
2010. During the elections, Richards, whose name remained on the ballots, garnered 101, 250 votes while his opponents,
namely, Eufrocino Codilla, Jr. and herein petitioner Silverio Tagolino, obtained 76,549 and 493 votes, respectively.13 In view of
the aforementioned substitution, Richard's votes were credited in favor of private respondent and as a result, she was
proclaimed the duly-elected Representative of the Fourth District of Leyte.
On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion relative to Resolution
No. 8890.14 The said motion, however, remained unacted.
On May 24, 2010, petitioner filed a Petition15 for quo warranto before the HRET in order to oust private respondent from her
congressional seat, claiming that: (1) she failed to comply with the one (1) year residency requirement under Section 6, Article
VI of the Constitution considering that the transfer of her voter registration from San Rafael Bulacan16 to the Fourth District of
Leyte was only applied for on July 23, 2009; (2) she did not validly substitute Richard as his CoC was void ab initio; and (3)
private respondent's CoC was void due to her non-compliance with the prescribed notarial requirements i.e., she failed to
present valid and competent proof of her identity before the notarizing officer.17chanroblesvirtualawlibrary
In her Verified Answer,18 private respondent denied petitioner's allegations and claimed that she validly substituted her
husband in the electoral process. She also averred that she personally known to the notary public who notarized her CoC, one
Atty. Edgardo Cordeno, and thus, she was not required to have presented any competent proof of identity during the
notarization of the said document. Lastly, she asserted that despite her marriage to Richard and exercise of profession in
Metro Manila, she continued to maintain her residency in Ormoc City which was the place where she was born and raised.
During the preliminary conference, and as shown in the Preliminary Conference Order dated September 2, 2010, the parties
agreed on the following issues for resolution:chanroblesvirtualawlibrary
1. Whether or not the instant petition for quo warranto is meritorious;
2. Whether or not the substitution of respondent is valid;
3. Whether or not a petition for quo warranto can be used as a substitute for failure to file the necessary petition for
disqualification with the COMELEC;
4. Whether or not respondent's COC was duly subscribed; and
5. Whether or not respondent is ineligible for the position of Representative of the Fourth District of Leyte for lack of
residency requirement.19
Ruling of the HRET
After due proceedings, the HRET issued the assailed March 22, 2012 Decision20 which dismissed the quo warranto petition and
declared that private respondent was a qualified candidate for the position of Leyte Representative (Fourth Legislative
District). It observed that the resolution denying Richard's candidacy i.e., the COMELEC First Division's February 17, 2010
Resolution, spoke of disqualification and not of CoC cancellation. Hence, it held that the substitution of private respondent in
lieu of Richard was legal and valid.21 Also, it upheld the validity of private respondent's CoC due to petitioner's failure to
controvert her claim that she was personally known to the notary public who notarized her CoC.22 Finally, the HRET ruled that
while it had been admitted that private respondent resides in Colgate Street, San Juan City and lived in San Rafael, Bulacan,
the fact was she continued to retain her domicile in Ormoc City given that her absence therefrom was only temporary.
Hence, the instant petition.
Issues Before the Court
The crux of the present controversy is whatever or not the HRET gravely abused its discretion in finding that Richard was
validly substituted by private respondent as candidate for Leyte Representative (Fourth Legislative District) in view of the
former's failure to meet the one (1) year residency requirement provided under Section 6, Article VI of the Constitution.
It is petitioner's submission that the HRET gravely abused its discretion when it upheld the validity of private respondent's
substitution despite contrary jurisprudence holding that substitution is impermissible where the substituted candidate's CoC
was denied due course to and/or cancelled, as in the case of Richard. On the other hand, respondents maintain that Richard's
CoC was not denied due course to and/or cancelled by the COMELEC as he was only "disqualified" and therefore, was properly
substituted by private respondent.
Ruling of the Court
The petition is meritorious.
A. Distinction between a petition for disqualification and a petition to deny due course to/cancel a certificate of candidacy
The Omnibus Election Code23 (OEC) provides for certain remedies to assail a candidate's bid for public office. Among these
which obtain particular significance to this case are: (1) a petition for disqualification under Section 68; and (2) a petition to
deny due course to and/or cancel a certificate of candidacy under Section 78. The distinctions between the two are well-
perceived.
Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidate's possession of a permanent
resident status in a foreign country;24 or (b) his or her commission of certain acts of disqualification. Anent the latter, the
prohibited acts under Section 68 refer to election offenses under the OEC, and not to violations of other penal laws.25 In
particular, these are: (1) giving money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (2) committing acts of terrorism to enhance one's candidacy; (3) spending in one's
election campaign an amount in excess of that allowed by the OEC; (4) soliciting, receiving or making any contribution
prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections 80,26 83,27 85,28 8629 and 261,
paragraphs d,30 e,31 k,32 v,33and cc, sub-paragraph 634 of the OEC. Accordingly, the same provision (Section 68) states that any
candidate who, in an action or protest in which he or she is a party, is declared by final decision of a competent court guilty of,
or found by the COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a candidate for
public office, or disallowed from holding the same, if he or she had already been elected.35chanroblesvirtualawlibrary
It must be stressed that one who is disqualified under Section 68 is still technically considered to have been a candidate, albeit
proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory
eligibility. In other words, while the candidate's compliance with the eligibility requirements as prescribed by law, such as age,
residency, and citizenship, is not in question, he or she is, however, ordered to discontinue such candidacy as a form of penal
sanction brought by the commission of the above-mentioned election offenses.
On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of the OEC36 is
premised on a person's misrepresentation of any of the material qualifications required for the elective office aspired for. It is
not enough that a person lacks the relevant qualification; he or she must have also made a false representation of the same in
the CoC.37 The nature of a Section 78 petition was discussed in the case of Fermin v. COMELEC,38 where the Court
illumined:chanroblesvirtualawlibrary
Let it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications
but on a finding that the candidate made a material representation that is false, which may relate to the qualifications
required of the public office he/she is running for. It is noted that the candidates states in his/her CoC that he/she is eligible
for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the
CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the
Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since
they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78"
petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.
(Emphasis supplied)
Corollary thereto, it must be noted that the deliberateness of the misrepresentation, much less one's intent to defraud, is of
bare significance in a Section 78 petition as it is enough that the person's declaration of a material qualification in the CoC be
false. In this relation, jurisprudence holds that an express finding that the person committed any deliberate misrepresentation
is of little consequence in the determination of whether one's CoC should be deemed cancelled or not.39 What remains
material is that the petition essentially seeks to deny due course to and/or cancel the CoC on the basis of one's ineligibility and
that the same be granted without any qualification.40chanroblesvirtualawlibrary
Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate for all intents and
purposes, on the other hand, a person whose CoC had been denied due course to and/or cancelled under Section 78 is
deemed to have not been a candidate at all. The reason being is that a cancelled CoC is considered void ab initio and thus,
cannot give rise to a valid candidacy and necessarily, to valid votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled
that:chanroblesvirtualawlibrary
x x x While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, a person who
certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.
The foregoing variance gains utmost importance to the present case considering its implications on candidate substitution.
B. Valid CoC as a condition sine qua non for candidate substitution
Section 77 of the OEC provides that if an official candidate of a registered or accredited political party dies, withdraws or is
disqualified for any cause, a person belonging to and certified by the same political party may file a CoC to replace the
candidate who died, withdrew or was disqualified. It states that:chanroblesvirtualawlibrary
Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates
of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the
candidate who died, withdrew or was disqualified. (Emphasis supplied)
Evidently, Section 77 requires that there be an "official candidate" before candidate substitution proceeds. Thus, whether the
ground for substitution is death, withdrawal or disqualification of a candidate, the said section unequivocally states that only
an official candidate of a registered or accredited party may be substituted.43chanroblesvirtualawlibrary
As defined under Section 79(a) of the OEC, the term "candidate" refers to any person aspiring for or seeking an elective public
office who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of
parties. Clearly, the law requires that one must have validly filed a CoC in order to be considered a candidate. The requirement
of having a CoC obtains even greater importance if one considers its nature. In particular, a CoC formalizes not only a person's
public declaration to run for office but evidences as well his or her statutory eligibility to be elected for the said post. In Sinaca
v. Mula,44 the Court has illumined:chanroblesvirtualawlibrary
A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or
lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy
for the office mentioned and the be is eligible for the office, the name of the political party to which he belongs, if he belongs
to any, and his post-office address for all election purposes being as well stated. (Emphasis and underscoring supplied).
In this regard, the CoC is the document which formally accords upon a person the status of a candidate. In other words,
absent a valid CoC one is not considered a candidate under legal contemplation. As held in Talaga:45chanroblesvirtualawlibrary
x x x a person's declaration of his intention to run for public office and his affirmation that he possesses the eligibility for the
position he seeks to assume, followed by the timely filing of such declaration, constitute a valid CoC that render the person
making the declaration a valid or official candidate. (Emphasis supplied)
Considering that Section 77 requires that there be a candidate in order for substitution to take place, as well as the precept
that a person without a valid CoC is not considered as a candidate at all, it necessarily follows that if a person's CoC had been
denied due course to and/or cancelled, he or she cannot be validly substituted in the electoral process. The existence of a
valid CoC is therefore a condition sine qua non for a disqualified candidate to be validly
substituted.46chanroblesvirtualawlibrary
C. Divergent effects of disqualification and denial of due course to and/or cancellation of CoC cases vis-à-vis candidate
substitution
Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut distinction between a disqualification case
under Section 68 and denial of due course to and/or cancellation of COC case under Section 78 vis-à-vis their respective
effects on candidate substitution under Section 77.
As explained in the case of Miranda v. Abaya47 (Miranda), a candidate who is disqualified under Section 68 can be validly
substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose CoC has been
denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a
candidate.48 Stated differently, since there would be no candidate to speak of under a denial of due course to and/or
cancellation of a CoC case, then there would be no candidate to be substituted; the same does not obtain, however, in a
disqualification case since there remains to be a candidate to be substituted, although his or her candidacy is discontinued.
On this note, it is equally revelatory that Section 77 expressly enumerates the instances where substitution is permissible, that
is when an official candidate of a registered or accredited political party "dies, withdraws or is disqualified for any cause."
Noticeably, material misrepresentation cases are not included in the said section and therefore, cannot be a valid basis to
proceed with candidate substitution.
D. Application to the case at bar
In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010 elections due to his failure to comply
with the one year residency requirement.49 The confusion, however, stemmed from the use of the word "disqualified" in the
February 17, 2010 Resolution of the COMELEC First Division, which was adopted by the COMELEC En Banc in granting the
substitution of private respondent, and even further perpetuated by the HRET in denying the quo warranto petition. In short,
a finding that Richard was merely disqualified and not that his CoC was denied due course to and/or cancelled would mean
that he could have been validly substitute by private respondent, thereby legitimizing her candidacy.
Yet the fact that the COMELEC First Division's February 17, 2010 Resolution did not explicitly decree the denial of due course
to and/or cancellation of Richard's CoC should not have obviated the COMELEC En Banc from declaring the invalidity of private
respondent's substitution. It should be stressed that the clear and unequivocal basis for Richard's "disqualification" is his
failure to comply with the residency requirement under Section 6, Article VI of the Constitution which is a ground for the
denial of due course to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation contemplated under a
Section 78 petition refers to statements affecting one's qualifications for elective office such as age, residence and citizenship
or non-possession of natural-born Filipino status.51 There is therefore no legal basis to support a finding of disqualification
within the ambit of election laws. Accordingly, given Richard's non-compliance with the one year residency requirement, it
cannot be mistaken that the COMELEC First Division's unqualified grant of Juntilla's "Verified Petition to Disqualify Candidate
for Lack of Qualification"52 which prayed that the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE from seeking the
office of Member of the House of Representatives" and "x x x that his Certificate of Candidacy x x x be DENIED DUE COURSE
and/or CANCELLED"53 carried with it the denial of due course to and/or cancellation of Richard's CoC pursuant to Section 78.
Case law dictates that if a petition prays for the denial of due course to and/or cancellation of CoC and the same is granted by
the COMELEC without any qualification, the cancellation of the candidate's CoC in in order. This is precisely the crux of the
Miranda ruling wherein the Court, in upholding the COMELEC En Banc's nullification of the substitution in that case, decreed
that the COMELEC Division's unqualified grant of the petition necessarily included the denial of due course to and/or
cancellation of the candidate's CoC, notwithstanding the use of the term "disqualified" in the COMELEC Division's resolution,
as the foregoing was prayed for in the said petition:chanroblesvirtualawlibrary
The question to settle next is whether or not aside from Joiel "Pempe" Miranda being disqualified by the COMELEC in its May
5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondent's petition in SPA No. 98-019 specifically prayed for the following:chanroblesvirtualawlibrary
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the
City of Snatiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
In resolving the petition filed by private respondent specifying a very particular relief, the COMELEC ruled favorably in the
following manner:chanroblesvirtualawlibrary
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE "Pempe"
MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998
national and local elections.
SO ORDERED.
From a plain reading of the dispositive portion of the COMELEC resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently
clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the
matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due
course and cancellation of the certificate of candidacy.
xxx
There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and
to cancel the certificate of candidacy of Jose "Pempe" Miranda. There is likewise no question that the said petition was
GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the COMELEC granted any
further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition was granted and that the
certificate of candidacy of Jose "Pempe" Miranda was denied due course and cancelled. (Emphasis and underscoring supplied)
The same rule was later discussed in the case of Talaga, viz:chanroblesvirtualawlibrary
3. Granting without any qualification or petition in SPA No. 09-029(DC) manifested COMELEC's intention to declare Ramon
disqualified and to cancel his CoC
xxx
In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be not given due course and/or
cancelled". The COMELEC categorically granted "the petition" and then pronounced in apparent contradiction that Joel Pempe
Miranda was "disqualified." The Court held that the COMELEC, by granting the petition without any qualification, disqualified
Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda's CoC.
xxx
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of cancelling or denying due
course to the CoC prayed for in the petition by not subjecting that relief to any qualification. (Emphasis and underscoring
supplied)
In view of the foregoing rulings, the COMELEC En Banc direly misconstrued the COMELEC First Division's February 17, 2010
Resolution when it adopted the Law Department's finding that Richard was only "disqualified" and that his CoC was not
denied due course to and/or cancelled, paving the way for the approval of private respondent's substitution. It overlooked the
fact that the COMELEC First Division's ruling encompassed the cancellation of Richard's CoC and in consequence, disallowed
the substitution of private respondent. It was therefore grave and serious error on the part of the COMELEC En Banc to have
approved private respondent's substitution.
Consequently, in perpetuating the COMELEC En Banc's error as above-discussed, the HRET committed a grave abuse of
discretion, warranting the grant of the instant petition.
Fundamental is the rule that grave abuse of discretion arises when a lower court or tribunal patently violates the Constitution,
the law or existing jurisprudence.54 While it is well-recognized that the HRET has been empowered by the Constitution to be
the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House, the Court
maintains jurisdiction over it to check "whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction" on the part of the latter.55 In other words, when the HRET utterly disregards the law and settled precedents on
the matter before it, it commits a grave abuse of discretion.
Records clearly show that: (1) Richard was held ineligible as a congressional candidate for the Fourth District of Leyte due to
his failure to comply with the one year residency requirement; (2) Juntilla's petition prayed for the denial of due course to
and/or cancellation of his CoC; and (3) the COMELEC First Division granted the foregoing petition without any qualification. By
these undisputed and essential facts alone, the HRET should not have adopted the COMELEC En Banc's erroneous finding that
the COMELEC First Division's February 17, 2010 Resolution "speaks only of "disqualification and not of cancellation of
Richard's CoC"36 and thereby, sanctioned the substitution of private respondent.
Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements relative to the qualifications of the
Members of the House. Being the sole judge57 of all contests relating to the election, returns, and qualifications of its
respective members, the HRET cannot be tied down by COMELEC resolutions, else its constitutional mandate58 be
circumvented and rendered nugatory. Instructive on this point is the Court's disquisition in Fernandez v. HRET,59 to
wit:chanroblesvirtualawlibrary
Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET, when reference to the
qualification/s of Members of the House of Representatives is concerned, is "co-equal", to the COMELEC respecting the
matter of eligibility and qualification of a member of the House of Representatives. The truth is the other way around,
because the COMELEC is subservient to the HRET when the dispute or contest at issue refers to the eligibility and/or
qualification of a Member of the House of Representatives. A petition for quo warranto is within the exclusive jurisdiction of
the HRET as sole judge, and cannot be considered forum shopping even if another body may have passed upon in
administrative or quasi-judicial proceedings the issue of the Member's qualification while the Member was still a candidate.
There is forum-shopping only where two cases involve the same parties and the same cause of action. The two cases here are
distinct and dissimilar in their nature and character. (Emphasis and underscoring supplied)
Notably, the phrase "election, returns, and qualifications" should be interpreted in its totality as referring to all matters
affecting the validity of the contestee's title. More particularly, the term "qualifications" refers to matters that could be raised
in a quo warranto proceeding against the pro-claimed winner, such as his disloyalty or ineligibility, or the inadequacy of his
certificate of candidacy.60 As used in Section 74 of the OEC, the word "eligible" means having the right to run for elective
public office, that is, having all the qualifications and none of the ineligibilities to run for the public office.61 In this relation,
private respondent's own qualification to run for public office which was inextricably linked to her husband's own
qualifications due to her substitution was the proper subject of quo warranto proceedings falling within the exclusive
jurisdiction of the HRET and independent from any previous proceedings before the COMELEC, lest the jurisdiction divide
between the two be blurred.
Nonetheless, it must be pointed out that the HRET's independence is not without limitation. As earlier mentioned, the Court
retains certiorari jurisdiction over the HRET if only to check whether or not it has gravely abused its discretion. In this regard,
the Court does not endeavor to denigrate nor undermine the HRET's independence; rather, it merely fulfills its duty to ensure
that the Constitution and the laws are upheld through the exercise of its power of judicial review.
In fine, the Court observes that the HRET wantonly disregarded the law by deliberately adopting the COMELEC En Banc's
flawed findings regarding private respondent's eligibility to run for public office which essentially stemmed from her
substitution. In this light, it cannot be gainsaid that the HRET gravely abused its discretion.
Owing to the lack of proper substitution in its case, private respondent was therefore not a bona fide candidate for the
position of Representative for the Fourth District of Leyte when she ran for office, which means that she could not have been
elected. Considering this pronouncement, there exists no cogent reason to further dwell on the other issues respecting private
respondent's own qualification to office.
WHEREFORE, the petition is GRANTED. Accordingly, the March 22, 2012 Decision rendered by the House of Representatives
Electoral Tribunal in HRET Case No. 10-031 (QW) is hereby REVERSED and SET ASIDE.
SO ORDERED.
 SECOND DIVISION

COMMISSIONER OF CUSTOMS and the DISTRICT G.R. No. 179579

COLLECTOR OF THE PORT OF SUBIC,
Petitioners, Present:

CARPIO, J., Chairperson,

BRION,
- versus - PEREZ,
SERENO, and
REYES, JJ.

HYPERMIX FEEDS CORPORATION, Promulgated:

Respondent.
February 1, 2012
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
SERENO, J.:
Before us is a Petition for Review under Rule 45,[1] assailing the Decision[2] and the Resolution[3] of the Court of
Appeals (CA), which nullified the Customs Memorandum Order (CMO) No. 27-2003[4] on the tariff classification of wheat
issued by petitioner Commissioner of Customs.
The antecedent facts are as follows:
On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the Memorandum, for tariff
purposes, wheat was classified according to the following: (1) importer or consignee; (2) country of origin; and (3) port of
discharge.[5] The regulation provided an exclusive list of corporations, ports of discharge, commodity descriptions and
countries of origin. Depending on these factors, wheat would be classified either as food grade or feed grade. The
corresponding tariff for food grade wheat was 3%, for feed grade, 7%.
CMO 27-2003 further provided for the proper procedure for protest or Valuation and Classification Review
Committee (VCRC) cases. Under this procedure, the release of the articles that were the subject of protest required the
importer to post a cash bond to cover the tariff differential.[6]
A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a Petition for Declaratory
Relief[7] with the Regional Trial Court (RTC) of Las Piñas City. It anticipated the implementation of the regulation on its
imported and perishable Chinese milling wheat in transit from China.[8] Respondent contended that CMO 27-2003 was issued
without following the mandate of the Revised Administrative Code on public participation, prior notice, and publication or
registration with the University of the Philippines Law Center.
Respondent also alleged that the regulation summarily adjudged it to be a feed grade supplier without the benefit of
prior assessment and examination; thus, despite having imported food grade wheat, it would be subjected to the 7% tariff
upon the arrival of the shipment, forcing them to pay 133% more than was proper.
Furthermore, respondent claimed that the equal protection clause of the Constitution was violated when the
regulation treated non-flour millers differently from flour millers for no reason at all.
Lastly, respondent asserted that the retroactive application of the regulation was confiscatory in nature.
On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for twenty (20) days from notice.[9]
Petitioners thereafter filed a Motion to Dismiss.[10] They alleged that: (1) the RTC did not have jurisdiction over the
subject matter of the case, because respondent was asking for a judicial determination of the classification of wheat; (2) an
action for declaratory relief was improper; (3) CMO 27-2003 was an internal administrative rule and not legislative in nature;
and (4) the claims of respondent were speculative and premature, because the Bureau of Customs (BOC) had yet to examine
respondent’s products. They likewise opposed the application for a writ of preliminary injunction on the ground that they had
not inflicted any injury through the issuance of the regulation; and that the action would be contrary to the rule that
administrative issuances are assumed valid until declared otherwise.
On 28 February 2005, the parties agreed that the matters raised in the application for preliminary injunction and the
Motion to Dismiss would just be resolved together in the main case. Thus, on 10 March 2005, the RTC rendered its
Decision[11] without having to resolve the application for preliminary injunction and the Motion to Dismiss.
The trial court ruled in favor of respondent, to wit:
WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject Customs
Memorandum Order 27-2003 is declared INVALID and OF NO FORCE AND EFFECT. Respondents
Commissioner of Customs, the District Collector of Subic or anyone acting in their behalf are to immediately
cease and desist from enforcing the said Customs Memorandum Order 27-2003.
SO ORDERED.[12]

The RTC held that it had jurisdiction over the subject matter, given that the issue raised by respondent concerned the
quasi-legislative powers of petitioners. It likewise stated that a petition for declaratory relief was the proper remedy, and that
respondent was the proper party to file it. The court considered that respondent was a regular importer, and that the latter
would be subjected to the application of the regulation in future transactions.
With regard to the validity of the regulation, the trial court found that petitioners had not followed the basic
requirements of hearing and publication in the issuance of CMO 27-2003. It likewise held that petitioners had “substituted the
quasi-judicial determination of the commodity by a quasi-legislative predetermination.”[13] The lower court pointed out that a
classification based on importers and ports of discharge were violative of the due process rights of respondent.
Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the same allegations in
defense of CMO 27-2003.[14] The appellate court, however, dismissed the appeal. It held that, since the regulation affected
substantial rights of petitioners and other importers, petitioners should have observed the requirements of notice, hearing
and publication.
Hence, this Petition.
Petitioners raise the following issues for the consideration of this Court:
I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN ACCORD WITH THE
LAW AND PREVAILING JURISPRUDENCE.
II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL COURT HAS JURISDICTION OVER
THE CASE.
The Petition has no merit.
We shall first discuss the propriety of an action for declaratory relief.
Rule 63, Section 1 provides:
Who may file petition. – Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or
duties, thereunder.
The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal
interest in the controversy; and (4) the issue involved must be ripe for judicial determination.[15] We find that the Petition filed
by respondent before the lower court meets these requirements.
First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner Commissioner of
Customs. In Smart Communications v. NTC,[16] we held:

The determination of whether a specific rule or set of rules issued by an administrative agency
contravenes the law or the constitution is within the jurisdiction of the regular courts. Indeed, the
Constitution vests the power of judicial review or the power to declare a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts,
including the regional trial courts. This is within the scope of judicial power, which includes the authority
of the courts to determine in an appropriate action the validity of the acts of the political
departments. Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary,[17] we said:
xxx [A] legislative rule is in the nature of subordinate legislation, designed to implement a primary
legislation by providing the details thereof. xxx
In addition such rule must be published. On the other hand, interpretative rules are designed to provide
guidelines to the law which the administrative agency is in charge of enforcing.
Accordingly, in considering a legislative rule a court is free to make three inquiries: (i) whether the
rule is within the delegated authority of the administrative agency; (ii) whether it is reasonable;
and (iii) whether it was issued pursuant to proper procedure. But the court is not free to substitute its
judgment as to the desirability or wisdom of the rule for the legislative body, by its delegation of
administrative judgment, has committed those questions to administrative judgments and not to judicial
judgments. In the case of an interpretative rule, the inquiry is not into the validity but into the correctness or
propriety of the rule. As a matter of power a court, when confronted with an interpretative rule, is free
to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute its judgment; or (iii) give
some intermediate degree of authoritative weight to the interpretative rule. (Emphasis supplied)

Second, the controversy is between two parties that have adverse interests. Petitioners are summarily imposing a
tariff rate that respondent is refusing to pay.
Third, it is clear that respondent has a legal and substantive interest in the implementation of CMO 27-2003.
Respondent has adequately shown that, as a regular importer of wheat, on 14 August 2003, it has actually made shipments of
wheat from China to Subic. The shipment was set to arrive in December 2003. Upon its arrival, it would be subjected to the
conditions of CMO 27-2003. The regulation calls for the imposition of different tariff rates, depending on the factors
enumerated therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade wheat, instead
of the 3% tariff on food grade wheat. In addition, respondent would have to go through the procedure under CMO 27-2003,
which would undoubtedly toll its time and resources. The lower court correctly pointed out as follows:
xxx As noted above, the fact that petitioner is precisely into the business of importing wheat, each
and every importation will be subjected to constant disputes which will result into (sic) delays in the
delivery, setting aside of funds as cash bond required in the CMO as well as the resulting expenses thereof.
It is easy to see that business uncertainty will be a constant occurrence for petitioner. That the sums
involved are not minimal is shown by the discussions during the hearings conducted as well as in the
 pleadings filed. It may be that the petitioner can later on get a refund but such has been foreclosed because
the Collector of Customs and the Commissioner of Customs are bound by their own CMO. Petitioner cannot
get its refund with the said agency. We believe and so find that Petitioner has presented such a stake in the
outcome of this controversy as to vest it with standing to file this petition.[18] (Emphasis supplied)

Finally, the issue raised by respondent is ripe for judicial determination, because litigation is inevitable[19] for the
simple and uncontroverted reason that respondent is not included in the enumeration of flour millers classified as food grade
wheat importers. Thus, as the trial court stated, it would have to file a protest case each time it imports food grade wheat and
be subjected to the 7% tariff.
It is therefore clear that a petition for declaratory relief is the right remedy given the circumstances of the case.
Considering that the questioned regulation would affect the substantive rights of respondent as explained above, it
therefore follows that petitioners should have applied the pertinent provisions of Book VII, Chapter 2 of the Revised
Administrative Code, to wit:
Section 3. Filing. – (1) Every agency shall file with the University of the Philippines Law Center three
(3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are
not filed within three (3) months from that date shall not thereafter be the bases of any sanction against any
party of persons.
xxx xxx xxx
Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as
practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.
(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been
published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon.
(3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare
issuance, for it gives no real consequence more than what the law itself has already prescribed. When, on the other hand, the
administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the
implementation of the law but substantially increases the burden of those governed, it behooves the agency to accord at least
to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the
force and effect of law.[20]
Likewise, in Tañada v. Tuvera,[21] we held:
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” It would
be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the
debates and deliberations in the Batasan Pambansa – and for the diligent ones, ready access to the
legislative records – no such publicity accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents and texts of such
decrees. (Emphasis supplied)

Because petitioners failed to follow the requirements enumerated by the Revised Administrative Code, the assailed
regulation must be struck down.
Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for being violative of the equal
protection clause of the Constitution.
The equal protection clause means that no person or class of persons shall be deprived of the same protection of laws
enjoyed by other persons or other classes in the same place in like circumstances. Thus, the guarantee of the equal protection
of laws is not violated if there is a reasonable classification. For a classification to be reasonable, it must be shown that (1) it
rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing conditions only; and
(4) it applies equally to all members of the same class.[22]
Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the quality of wheat is affected
by who imports it, where it is discharged, or which country it came from.
Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food grade wheat, the
product would still be declared as feed grade wheat, a classification subjecting them to 7% tariff. On the other hand, even if
the importers listed under CMO 27-2003 have imported feed grade wheat, they would only be made to pay 3% tariff, thus
depriving the state of the taxes due. The regulation, therefore, does not become disadvantageous to respondent only, but
even to the state.
It is also not clear how the regulation intends to “monitor more closely wheat importations and thus prevent their
misclassification.” A careful study of CMO 27-2003 shows that it not only fails to achieve this end, but results in the opposite.
The application of the regulation forecloses the possibility that other corporations that are excluded from the list import food
grade wheat; at the same time, it creates an assumption that those who meet the criteria do not import feed grade wheat. In
the first case, importers are unnecessarily burdened to prove the classification of their wheat imports; while in the second,
the state carries that burden.
Petitioner Commissioner of Customs also went beyond his powers when the regulation limited the customs officer’s
duties mandated by Section 1403 of the Tariff and Customs Law, as amended. The law provides:
Section 1403. – Duties of Customs Officer Tasked to Examine, Classify, and Appraise Imported
Articles. – The customs officer tasked to examine, classify, and appraise imported articles shall determine
whether the packages designated for examination and their contents are in accordance with the
declaration in the entry, invoice and other pertinent documents and shall make return in such a manner as
to indicate whether the articles have been truly and correctly declared in the entry as regard their
quantity, measurement, weight, and tariff classification and not imported contrary to law. He shall submit
samples to the laboratory for analysis when feasible to do so and when such analysis is necessary for the
proper classification, appraisal, and/or admission into the Philippines of imported articles.
Likewise, the customs officer shall determine the unit of quantity in which they are usually bought
and sold, and appraise the imported articles in accordance with Section 201 of this Code.
Failure on the part of the customs officer to comply with his duties shall subject him to the penalties
prescribed under Section 3604 of this Code.
The provision mandates that the customs officer must first assess and determine the classification of the imported
article before tariff may be imposed. Unfortunately, CMO 23-2007 has already classified the article even before the customs
officer had the chance to examine it. In effect, petitioner Commissioner of Customs diminished the powers granted by the
Tariff and Customs Code with regard to wheat importation when it no longer required the customs officer’s prior examination
and assessment of the proper classification of the wheat.
It is well-settled that rules and regulations, which are the product of a delegated power to create new and additional
legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the legislature to
the administrative agency. It is required that the regulation be germane to the objects and purposes of the law; and that it be
not in contradiction to, but in conformity with, the standards prescribed by law.[23]
In summary, petitioners violated respondent’s right to due process in the issuance of CMO 27-2003 when they failed
to observe the requirements under the Revised Administrative Code. Petitioners likewise violated respondent’s right to equal
protection of laws when they provided for an unreasonable classification in the application of the regulation. Finally,
petitioner Commissioner of Customs went beyond his powers of delegated authority when the regulation limited the powers
of the customs officer to examine and assess imported articles.
WHEREFORE, in view of the foregoing, the Petition is DENIED.
SO ORDERED.
ATTY. ROMULO B. MACALINTAL, G.R. No. 191618
Petitioner,
Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
PRESIDENTIAL ELECTORAL TRIBUNAL,
Respondent. Promulgated:

November 23, 2010

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.”

xxxx
 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. SATUR G.R. No. 159618

OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA
L. MAZA, Present:
Petitioner,
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
- versus - NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
ALBERTO ROMULO, in his capacity as Executive VILLARAMA, JR.,
Secretary, and BLAS F. OPLE, in his capacity as PEREZ,
Secretary of Foreign Affairs, MENDOZA, and
Respondents. SERENO, JJ.

Promulgated:

February 1, 2011
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
Genocide
For the purpose of this Statute, “genocide”
means any of the following acts committed with
intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group conditions
of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group to
another group.
Article 8
§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).
(a) Definition – As used in this Section the term
 War Crimes
2. For the purpose of this Statute, “war crimes”
means:
(a) Grave breaches of the Geneva Conventions of
12 August 1949, namely, any of the following
acts against persons or property protected under
the provisions of the relevant Geneva
Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the following
acts:
xxxx
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any of
the following acts committed against persons
taking no active part in the hostilities, including
members of armed forces who have laid down
their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:
xxxx
(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.
“war crime” means any conduct –
(1) Defined as a grave breach in any of the
international conventions signed
at Geneva12 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][85]) 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.[86]

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,
Present:

CARPIO, J.,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
- versus - PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
COMMISSION ON ELECTIONS, SERENO,
Respondent. REYES, and
PERLAS-BERNABE, JJ.

Promulgated:
June 19, 2012

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 x x

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
fury.[37] 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 ADVANCEMENT G.R. NO. 177508

AND TRANSPARENCY (BANAT) PARTY-LIST, represented by
SALVADOR B. BRITANICO,
Petitioner, PRESENT:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
- versus - CARPIO-MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, AND
BERSAMIN, JJ.
COMMISSION ON ELECTIONS,
RESPONDENT.
PROMULGATED:
AUGUST 7, 2009
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.
FERRER,*and the SANGGUNIANG PANLUNGSOD OF Present:
LA CARLOTA CITY, NEGROS OCCIDENTAL,
represented by its Vice-Mayor, HON. DEMIE JOHN C. CORONA, C.J.,
HONRADO,** CARPIO,
Petitioners, VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
- versus - PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.
ATTY. REX G. ROJO,
Respondent.

Promulgated:
April 24, 2012
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
17
OIC, OUSLG
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?”

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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.

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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.