G.R. No.
132601 January 19, 1999 congressional prerogatives; (2) the exercise by this Court of its power to stay
LEO ECHEGARAY, petitioner, vs. SECRETARY OF JUSTICE, ET
AL., respondents.
RESOLUTION
PUNO, J.:
For resolution are public respondents' Urgent Motion for Reconsideration of the
Resolution of this Court dated January 4, 1990 temporarily restraining the execution
of petitioner and Supplemental Motion to Urgent Motion for Reconsideration. It is the
submission of public respondents that:
1. The Decision in this case having become final and executory, its
execution enters the exclusive ambit of authority of the executive
authority. The issuance of the TRO may be construed as trenching
on that sphere of executive authority;
2. The issuance of the temporary restraining order . . . creates
dangerous precedent as there will never be an end to litigation
because there is always a possibility that Congress may repeal a
law.
3. Congress had earlier deliberated extensively on the death penalty
bill. To be certain, whatever question may now be raised on the
Death Penalty Law before the present Congress within the 6-
month period given by this Honorable Court had in all probability
been fully debated upon . . .
4. Under the time honored maxim lex futuro, judex praeterito, the law
looks forward while the judge looks at the past, . . . the Honorable
Court in issuing the TRO has transcended its power of judicial
review.
5. At this moment, certain circumstances/supervening events
transpired to the effect that the repeal or modification of the law
imposing death penalty has become nil, to wit:
a. The public pronouncement of President Estrada that he
will veto any law imposing the death penalty involving
heinous crimes.
b. The resolution of Congressman Golez, et al., that they
are against the repeal of the law;
c. The fact that Senator Roco's resolution to repeal the law
only bears his signature and that of Senator Pimentel.
In their Supplemental Motion to Urgent Motion for Reconsideration, public
respondents attached a copy of House Resolution No. 629 introduced by
Congressman Golez entitled "Resolution expressing the sense of the House of
Representative to reject any move to review Republic Act No. 7659 which provided
for the re-imposition of death penalty, notifying the Senate, the Judiciary and the
Executive Department of the position of the House of Representative on this matter,
and urging the President to exhaust all means under the law to immediately
implement the death penalty law." The Resolution was concurred in by one hundred
thirteen (113) congressman.
In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within
the scope of judicial power and duty and does not trench on executive powers nor on
execution was reasonable; (3) the Court did not lose jurisdiction to address incidental
matters involved or arising from the petition; (4) public respondents are estopped
from challenging the Court's jurisdiction; and (5) there is no certainty that the law on
capital punishment will not be repealed or modified until Congress convenes and
considers all the various resolutions and bills filed before it.
Prefatorily, the Court likes to emphasize that the instant motions concern matters
that are not incidents in G.R. No. 117472, where the death penalty was imposed on
petitioner on automatic review of his conviction by this Court. The instant motions
were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177
(Lethal Injection Law) and its implementing rules and regulations was assailed by
petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely
noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7,
1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she
has no legal standing to intervene in the case at bar, let alone the fact that the
interest of the State is properly represented by the Solicitor General.
We shall now resolve the basic issues raised by the public respondents.
I
First. We do not agree with the sweeping submission of the public respondents that
this Court lost its jurisdiction over the case at bar and hence can no longer restrain
the execution of the petitioner. Obviously, public respondents are invoking the rule
that final judgments can no longer be altered in accord with the principle that "it is
just as important that there should be a place to end as there should be a place to
begin litigation." 1 To start with, the Court is not changing even a comma of its final
Decision. It is appropriate to examine with precision the metes and bounds of the
Decision of this Court that became final. These metes and bounds are clearly spelled
out in the Entry of Judgment in this case, viz:
ENTRY OF JUDGMENT
This is to certify that on October 12, 1998 a decision rendered in
the above-entitled case was filed in this Office, the dispositive part
of which reads as follows:
WHEREFORE, the petition is DENIED insofar
as petitioner seeks to declare the assailed
statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as
Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177
are concerned, which are hereby declared
INVALID because (a) Section 17 contravenes
Article 83 of the Revised Penal Code, as
amended by Section 25 of Republic Act No.
7659; and (b) Section 19 fails to provide for
review and approval of the Lethal Injection
Manual by the Secretary of Justice, and
unjustifiably makes the manual confidential,
hence unavailable to interested parties including
the accused/convict and counsel. Respondents
1
 are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the
aforesaid Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177
are appropriately amended, revised and/or
corrected in accordance with this Decision.
SO ORDERED.
and that the same has, on November 6, 1988 become final and
executory and is hereby recorded in the Book of Entries of
Judgment.
Manila, Philippine.
The records will show that before the Entry of Judgment, the
Secretary of Justice, the Honorable Serafin Cuevas, filed with this
Court on October 21, 1998 Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in
compliance with our Decision. On October 28, 1998, Secretary
Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and
Regulations as required by the Administrative Code. It is crystalline
that the Decision of this Court that became final and unalterable
mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that
sections 17 and 19 of the Rules and Regulations to Implement
R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be
enforced and implemented until sections 17 and 19 of the Rules
and Regulations to Implement R.A. No. 8177 are amended. It is
also daylight clear that this Decision was not altered a whit by this
Court. Contrary to the submission of the Solicitor General, the rule
on finality of judgment cannot divest this Court of its jurisdiction to
execute and enforce the same judgment. Retired Justice Camilo
Quiason synthesized the well-established jurisprudence on this
issue as
follows: 2
xxx xxx xxx
the finality of a judgment does not mean that the Court has lost all
its powers nor the case. By the finality of the judgment, what the
court loses is its jurisdiction to amend, modify or alter the same.
Even after the judgment has become final the court retains its
jurisdiction to execute and enforce it. 3 There is a difference
between the jurisdiction of the court to execute its judgment and its
jurisdiction to amend, modify or alter the same. The former
continues even after the judgment has become final for the
purpose of enforcement of judgment; the latter terminates when
the judgment becomes final. 4 . . . For after the judgment has
become final facts and circumstances may transpire which can
render the execution unjust or impossible.5
In truth, the arguments of the Solicitor General has long been rejected by this Court.
As aptly pointed out by the petitioner, as early as 1915, this Court has unequivocally
ruled in the case of Director of Prisons v. Judge of First Instance, 6 viz:
This Supreme Court has repeatedly declared in various decisions,
which constitute jurisprudence on the subject, that in criminal
cases, after the sentence has been pronounced and the period for
reopening the same cannot change or alter its judgment, as its
jurisdiction has terminated . . . When in cases of appeal or review
the cause has been returned thereto for execution, in the event
that the judgment has been affirmed, it performs a ministerial duty
in issuing the proper order. But it does not follow from this
cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having
then passed completely to the Executive. The particulars of the
execution itself, which are certainly not always included in the
judgment and writ of execution, in any event are absolutely under
the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying
out of the penalty and to pardon.
Getting down to the solution of the question in the case at bar,
which is that of execution of a capital sentence, it must be
accepted as a hypothesis that postponement of the date can be
requested. There can be no dispute on this point. It is a well-
known principle that notwithstanding the order of execution and
the executory nature thereof on the date set or at the proper time,
the date therefor can be postponed, even in sentences of death.
Under the common law this postponement can be ordered in three
ways: (1) By command of the King; (2) by discretion (arbitrio) of
the court; and (3) by mandate of the law. It is sufficient to state this
principle of the common law to render impossible that assertion in
absolute terms that after the convict has once been placed in jail
the trial court cannot reopen the case to investigate the facts that
show the need for postponement. If one of the ways is by direction
of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule
that after the (court) has performed its ministerial duty of ordering
the execution . . . and its part is ended, if however a circumstance
arises that ought to delay the execution, and there is an imperative
duty to investigate the emergency and to order a postponement.
Then the question arises as to whom the application for
postponing the execution ought to be addressed while the
circumstance is under investigation and so to who has jurisdiction
to make the investigation.
The power to control the execution of its decision is an essential aspect of
jurisdiction. It cannot be the subject of substantial subtraction for our
Constitution 7 vests the entirety of judicial power in one Supreme Court and in such
lower courts as may be established by law. To be sure, the important part of a
litigation, whether civil or criminal, is the process of execution of decisions where
supervening events may change the circumstance of the parties and compel courts
to intervene and adjust the rights of the litigants to prevent unfairness. It is because
of these unforeseen, supervening contingencies that courts have been conceded the
2
inherent and necessary power of control of its processes and orders to make them
conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides
that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect may be employed
by such court or officer and if the procedure to be followed in the exercise of such
jurisdiction is not specifically pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted which appears conformable to the
spirit of said law or rules." It bears repeating that what the Court restrained
temporarily is the execution of its own Decision to give it reasonable time to check its
fairness in light of supervening events in Congress as alleged by petitioner. The
Court, contrary to popular misimpression, did not restrain the effectivity of a law
enacted by Congress.
The more disquieting dimension of the submission of the public respondents that this
Court has no jurisdiction to restrain the execution of petitioner is that it can diminish
the independence of the judiciary. Since the implant of republicanism in our soil, our
courts have been conceded the jurisdiction to enforce their final decisions. In accord
with this unquestioned jurisdiction, this Court promulgated rules concerning pleading,
practice and procedure which, among others, spelled out the rules on execution of
judgments. These rules are all predicated on the assumption that courts have the
inherent, necessary and incidental power to control and supervise the process of
execution of their decisions. Rule 39 governs execution, satisfaction and effects of
judgments in civil cases. Rule 120 governs judgments in criminal cases. It should be
stressed that the power to promulgate rules of pleading, practice and procedure was
granted by our Constitutions to this Court to enhance its independence, for in the
words of Justice Isagani Cruz "without independence and integrity, courts will lose
that popular trust so essential to the maintenance of their vigor as champions of
justice." 9 Hence, our Constitutions continuously vested this power to this Court for it
enhances its independence. Under the 1935 Constitution, the power of this Court to
promulgate rules concerning pleading, practice and procedure was granted but it
appeared to be co-existent with legislative power for it was subject to the power of
Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:
Sec.13. The Supreme Court shall have the power to promulgate rules
concerning pleading, practice and procedure in all courts, and the
admission to the practice of law. Said rules shall be uniform for all courts of
the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice and procedure are hereby
repealed as statutes, and are declared Rules of Court, subject to the power
of the Supreme Court to alter and modify the same. The Congress have the
power to repeal, alter or supplement the rules concerning pleading, practice
and procedure, and the admission to the practice of law in the Philippines.
The said power of Congress, however, is not as absolute as it may appear on its
surface. In In re Cunanan 10Congress in the exercise of its power to amend rules of
the Supreme Court regarding admission to the practice of law, enacted the Bar
Flunkers Act of 1953 11 which considered as a passing grade, the average of 70% in
the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar
examinations. This Court struck down the law as unconstitutional. In his ponencia,
Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a
judgment — a judgment promulgated by this Court during the aforecited years
affecting the bar candidates concerned; and although this Court certainly can revoke
these judgments even now, for justifiable reasons, it is no less certain that only this
Court, and not the legislative nor executive department, that may do so. Any attempt
on the part of these department would be a clear usurpation of its function, as is the
case with the law in question." 12The venerable jurist further ruled: "It is obvious,
therefore, that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter is of
permissive character, or as other authorities say, merely to fix the minimum
conditions for the license." By its ruling, this Court qualified the absolutist tone of the
power of Congress to "repeal, alter or supplement the rules concerning pleading,
practice and procedure, and the admission to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution.
For the 1973 Constitution reiterated the power of this Court "to promulgate rules
concerning pleading, practice and procedure in all courts, which, however, may be
repealed, altered or supplemented by the Batasang Pambansa . . . ." More
completely, Section 5(2)5 of its Article X provided:
xxx xxx xxx
Sec.5. The Supreme Court shall have the following powers.
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the
admission to the practice of law, and the integration of the Bar, which, however, may
be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights.
Well worth noting is that the 1973 Constitution further strengthened the
independence of the judiciary by giving to it the additional power to promulgate rules
governing the integration of the Bar. 13
The 1987 Constitution molded an even stronger and more independent judiciary.
Among others, it enhanced the rule making power of this Court. Its Section 5(5),
Article VIII provides:
xxx xxx xxx
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice and procedure in all courts, the admission to the practice of
law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court. The rule
making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of
constitutional rights. The Court was also granted for the first time the power to
disapprove rules of procedure of special courts and quasi-judicial bodies. But most
importantly, the 1987 Constitution took away the power of Congress to repeal, alter,
or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this
3
Court with Congress, more so with the Executive. If the manifest intent of the 1987
Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as
public respondents do, that this Court has no jurisdiction to control the process of
execution of its decisions, a power conceded to it and which it has exercised since
time immemorial.
To be sure, it is too late in the day for public respondents to assail the jurisdiction of
this Court to control and supervise the implementation of its decision in the case at
bar. As aforestated, our Decision became final and executory on November 6, 1998.
The records reveal that after November 6, 1998, or on December 8, 1998, no less
than the Secretary of Justice recognized the jurisdiction of this Court by filing a
Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A.
Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of
the Warrant of Execution dated November 17, 1998 bearing the designated
execution day of death convict Leo Echegaray and allow (him) to reveal or announce
the contents thereof, particularly the execution date fixed by such trial court to the
public when requested." The relevant portions of the Manifestation and Urgent
Motion filed by the Secretary of Justice beseeching this Court "to provide the
appropriate relief" state:
xxx xxx xxx
5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein
respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia,
that the non-disclosure of the date of execution deprives herein respondent of vital
information necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's right to
information of public concern, and (b) to ask this Honorable Court to provide the
appropriate relief.
6. The non-disclosure of the date of execution deprives herein respondent of vital
information necessary for the exercise of his power of supervision and control over
the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the
Administrative Code of 1987, in relation to Title III, Book IV of such Administrative
Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules
and Regulations to Implement Republic Act No. 8177 is concerned and for the
discharge of the mandate of seeing to it that laws and rules relative to the execution
of sentence are faithfully observed.
7. On the other hand, the willful omission to reveal the information about the precise
day of execution limits the exercise by the President of executive clemency powers
pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine
Constitution and Article 81 of the Revised Penal Code, as amended, which provides
that the death sentence shall be carried out "without prejudice to the exercise by the
President of his executive powers at all times." (Emphasis supplied) For instance,
the President cannot grant reprieve, i.e., postpone the execution of a sentence to a
day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date
to reckon with. The exercise of such clemency power, at this time, might even work
to the prejudice of the convict and defeat the purpose of the Constitution and the
applicable statute as when the date at execution set by the President would be
earlier than that designated by the court.
8. Moreover, the deliberate non-disclosure of information about the date of execution
to herein respondent and the public violates Section 7, Article III (Bill of Rights) and
Section 28, Article II (Declaration of Principles and State Policies) of the 1987
Philippine Constitution which read:
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 beprovided by law.
Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all transactions
involving public interest.
9. The "right to information" provision is self-executing. It supplies "the rules by
means of which the right to information may be enjoyed (Cooley, A Treatise on the
Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the
duty to afford access to sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the Constitution
without need for any ancillary act of the Legislature (Id., at p. 165) What may be
provided for by the Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with the declared State
policy of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever
limitation may be prescribed by the Legislature, the right and the duty under Art. III,
Sec. 7 have become operative and enforceable by virtue of the adoption of the New
Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service
Commission, 150 SCRA 530, 534-535 [1987].
The same motion to compel Judge Ponferrada to reveal the date of execution of
petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7,
1998. He invoked his client's right to due process and the public's right to
information. The Solicitor General, as counsel for public respondents, did not oppose
petitioner's motion on the ground that this Court has no more jurisdictions over the
process of execution of Echegaray. This Court granted the relief prayed for by the
Secretary of Justice and by the counsel of the petitioner in its Resolution of
December 15, 1998. There was not a whimper of protest from the public
respondents and they are now estopped from contending that this Court has lost its
jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the
convenience of litigants.
II
Second. We likewise reject the public respondents' contention that the "decision in
this case having become final and executory, its execution enters the exclusive ambit
of authority of the executive department. By granting the TRO, the Honorable Court
has in effect granted reprieve which is an executive function." 14 Public respondents
cite as their authority for this proposition, Section 19, Article VII of the Constitution
which reads:
Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations,
4
 and pardons, and remit fines and forfeitures after conviction by
final judgment. He shall also have the power to grant amnesty with
the concurrence of a majority of all the members of the Congress.
The text and tone of this provision will not yield to the interpretation suggested by the
public respondents. The provision is simply the source of power of the President to
grant reprieves, commutations, and pardons and remit fines and forfeitures after
conviction by final judgment. It also provides the authority for the President to grant
amnesty with the concurrence of a majority of all the members of the Congress. The
provision, however, cannot be interpreted as denying the power of courts to control
the enforcement of their decisions after their finality. In truth, an accused who has
been convicted by final judgment still possesses collateral rights and these rights can
be claimed in the appropriate courts. For instance, a death convict who become
insane after his final conviction cannot be executed while in a state of insanity. 15 As
observed by Antieau, "today, it is generally assumed that due process of law will
prevent the government from executing the death sentence upon a person who is
insane at the time of execution." 16 The suspension of such a death sentence is
undisputedly an exercise of judicial power. It is not a usurpation of the presidential
power of reprieve though its effects is the same — the temporary suspension of the
execution of the death convict. In the same vein, it cannot be denied that Congress
can at any time amend R.A. No. 7659 by reducing the penalty of death to life
imprisonment. The effect of such an amendment is like that of commutation of
sentence. But by no stretch of the imagination can the exercise by Congress of its
plenary power to amend laws be considered as a violation of the power of the
President to commute final sentences of conviction. The powers of the Executive,
the Legislative and the Judiciary to save the life of a death convict do not exclude
each other for the simple reason that there is no higher right than the right to life.
Indeed, in various States in the United States, laws have even been enacted
expressly granting courts the power to suspend execution of convicts and their
constitutionality has been upheld over arguments that they infringe upon the power
of the President to grant reprieves. For the public respondents therefore to contend
that only the Executive can protect the right to life of an accused after his final
conviction is to violate the principle of co-equal and coordinate powers of the three
branches of our government.
III
Third. The Court's resolution temporarily restraining the execution of petitioner must
be put in its proper perspective as it has been grievously distorted especially by
those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for
Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several
grounds, viz: (1) that his execution has been set on January 4, the first working day
of 1999; (b) that members of Congress had either sought for his executive clemency
and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator
Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and
that capital punishment be reviewed has been concurred by thirteen (13) other
senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor
have publicly declared they would seek a review of the death penalty law; (b.3)
Senator Paul Roco has also sought the repeal of capital punishment, and (b.4)
Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are
demanding review of the same law.
When the Very Urgent Motion was filed, the Court was already in its traditional
recess and would only resume session on January 18, 1999. Even then, Chief
Justice Hilario Davide, Jr. called the Court to a Special Session on January 4,
1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly
had five (5) hours to resolve petitioner's motion as he was due to be executed at 3
p.m. Thus, the Court had the difficult problem of resolving whether petitioner's
allegations about the moves in Congress to repeal or amend the Death Penalty Law
are mere speculations or not. To the Court's majority, there were good reasons why
the Court should not immediately dismiss petitioner's allegations as mere
speculations and surmises. They noted that petitioner's allegations were made in a
pleading under oath and were widely publicized in the print and broadcast media. It
was also of judicial notice that the 11th Congress is a new Congress and has no less
than one hundred thirty (130) new members whose views on capital punishment are
still unexpressed. The present Congress is therefore different from the Congress that
enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A.
No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked
clear factual bases. There was hardly a time to verify petitioner's allegations as his
execution was set at 3 p.m. And verification from Congress was impossible as
Congress was not in session. Given these constraints, the Court's majority did not
rush to judgment but took an extremely cautious stance by temporarily restraining
the execution of petitioner. The suspension was temporary — "until June 15, 1999,
coeval with the constitutional duration of the present regular session of Congress,
unless it sooner becomes certain that no repeal or modification of the law is going to
be made." The extreme caution taken by the Court was compelled, among others, by
the fear that any error of the Court in not stopping the execution of the petitioner will
preclude any further relief for all rights stop at the graveyard. As life was at, stake,
the Court refused to constitutionalize haste and the hysteria of some partisans. The
Court's majority felt it needed the certainty that the legislature will not petitioner as
alleged by his counsel. It was believed that law and equitable considerations
demand no less before allowing the State to take the life of one its citizens.
The temporary restraining order of this Court has produced its desired result, i.e., the
crystallization of the issue whether Congress is disposed to review capital
punishment. The public respondents, thru the Solicitor General, cite posterior events
that negate beyond doubt the possibility that Congress will repeal or amend the
death penalty law. He names these supervening events as follows:
xxx xxx xxx
a. The public pronouncement of President Estrada that he will veto
any law imposing the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against
the repeal of the law;
c. The fact that Senator Roco's resolution to repeal the law only
bears his signature and that of Senator Pimentel
In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor
General cited House Resolution No. 629 introduced by Congressman Golez entitled
"Resolution expressing the sense of the House of Representatives to reject any
move to review R.A. No. 7659 which provided for the reimposition of death penalty,
notifying the Senate, the Judiciary and the Executive Department of the position of
5
the House of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law." The Golez
resolution was signed by 113 congressmen as of January 11, 1999. In a marathon
session yesterday that extended up 3 o'clock in the morning, the House of
Representative with minor, the House of Representative with minor amendments
formally adopted the Golez resolution by an overwhelming vote. House Resolution
No. 25 expressed the sentiment that the House ". . . does not desire at this time to
review Republic Act 7659." In addition, the President has stated that he will not
request Congress to ratify the Second Protocol in review of the prevalence of
heinous crimes in the country. In light of these developments, the Court's TRO
should now be lifted as it has served its legal and humanitarian purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of
capital punishment had been the subject of endless discussion and will probably
never be settled so long as men believe in punishment." 19 In our clime and time
when heinous crimes continue to be unchecked, the debate on the legal and moral
predicates of capital punishment has been regrettably blurred by emotionalism
because of the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no more than
an exchange of epithets is healthy in a democracy. But when the debate deteriorates
to discord due to the overuse of words that wound, when anger threatens to turn the
majority rule to tyranny, it is the especial duty of this Court to assure that the
guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds
us ". . . it is the very purpose of the Constitution — and particularly the Bill of Rights
— to declare certain values transcendent, beyond the reach of temporary political
majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a
hatchery where justice will bloom only when we can prevent the roots of reason to be
blown away by the winds of rage. The flame of the rule of law cannot be ignited by
rage, especially the rage of the mob which is the mother of unfairness. The business
of courts in rendering justice is to be fair and they can pass their litmus test only
when they can be fair to him who is momentarily the most hated by society.

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for
Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and
lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999.
The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada,
Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of
the convict/petitioner in accordance with applicable provisions of law and the Rules
of Court, without further delay.
SO ORDERED.
G.R. No. L-37878 November 25, 1932
MANILA ELECTRIC COMPANY, petitioner, vs.
PASAY TRANSPORTATION COMPANY, INC., ET AL., respondents.
MALCOLM, J.:
The preliminary and basic question presented by the petition of the Manila Electric
Company, requesting the members of the Supreme Court, sitting as a board of
arbitrators, to fix the terms upon which certain transportation companies shall be
permitted to use the Pasig bridge of the Manila Electric Company and the
compensation to be paid to the Manila Electric Company by such transportation
companies, relates to the validity of section 11 of Act No. 1446 and to the legal right
of the members of the Supreme Court, sitting as a board of arbitrators, to act on the
petition. Act No. 1446 above referred to is entitled. "An Act granting a franchise to
Charles M. Swift to construct, maintain, and operate an electric railway, and to
construct, maintain, and operate an electric light, heat, and power system from a

6
point in the City of Manila in an easterly direction to the town of Pasig, in the
Province of Rizal." Section 11 of the Act provides: "Whenever any franchise or right
of way is granted to any other person or corporation, now or hereafter in existence,
over portions of the lines and tracks of the grantee herein, the terms on which said
other person or corporation shall use such right of way, and the compensation to be
paid to the grantee herein by such other person or corporation for said use, shall be
fixed by the members of the Supreme Court, sitting as a board of arbitrators, the
decision of a majority of whom shall be final."
When the petition of the Manila Electric Company was filed in this court, it was
ordered that the petitioner be required to serve copies on the Attorney-General and
the transportation companies affected by the petition. Thereafter, the Attorney-
General disclaimed any interest in the proceedings, and opposition was entered to
the petition by a number of public utility operators. On the submission of memoranda
after an oral hearing, the petition was made ready for resolution.
Examining the statutory provision which is here invoked, it is first noted that power is
attempted to be granted to the members of the Supreme Court sitting as a board of
arbitrators and to the Supreme Court as an entity. It is next seen that the decision of
a majority of the members of the Supreme Court is made final. And it is finally
observed that the franchise granted the Manila Electric Company by the Government
of the Philippine Islands, although only a contract between the parties to it, is now
made to effect the rights of persons not signatories to the covenant.
The law calls for arbitration which represents a method of the parties' own choice. A
submission to arbitration is a contract. The parties to an arbitration agreement may
not oust the courts of jurisdiction of the matters submitted to arbitration. These are
familiar rules which find support in articles 1820 and 1821 of the Civil Code. Citation
of authority is hardly necessary, except that it should be recalled that in the
Philippines, and in the United States for that matter, it has been held that a clause in
a contract, providing that all matters in dispute between the parties shall be referred
to arbitrators and to them alone, is contrary to public policy and cannot oust the
courts of jurisdiction (Wahl and Wahl vs. Donaldson, Sims & Co. [1903], 2 Phil., 301;
Puentebella vs. Negros Coal Co. [1927], 50 Phil., 69; Vega vs. San Carlos Milling
Co. [1924], 51 Phil., 908; District of Columbia vs. Bailey [1897], 171 U. S., 161.)
We would not be understood as extending the principles governing arbitration and
award too far. Unless the arbitration agreement is such as absolutely to close the
doors of the courts against the parties, the courts should look with favor upon such
amicable arrangements. We can also perceive a distinction between a private
contract for submission to arbitration and agreements to arbitrate falling within the
terms of a statute enacted for such purpose and affecting others than the parties to a
particular franchise. Here, however, whatever else may be said in extenuation, it
remains true that the decision of the board of arbitrators is made final, which if
literally enforced would leave a public utility, not a party to the contract authorized by
Act No. 1446, without recourse to the courts for a judicial determination of the
question in dispute.
Counsel for the petitioner rely principally on the case of Tallassee Falls Mfg. Co. vs.
Commissioner's Court [1908], 158 Ala., 263. It was there held that an Act of a state
legislature authorizing the commissioners' court of a certain county to regulate and
fix the rate of toll to be charged by the owners of a bridge is not unconstitutional as
delegating legislative power to the courts. But that is not the question before us.
Here the question is not one of whether or not there has been a delegation of
legislative authority to a court. More precisely, the issue concerns the legal right of
the members of the Supreme Court, sitting as a board of arbitrators the decision of a
majority of whom shall be final, to act in that capacity.
We run counter to this dilemma. Either the members of the Supreme Court, sitting as
a board of arbitrators, exercise judicial functions, or the members of the Supreme
Court, sitting as board of arbitrators, exercise administrative or quasi judicial
functions. The first case would appear not to fall within the jurisdiction granted the
Supreme Court. Even conceding that it does, it would presuppose the right to bring
the matter in dispute before the courts, for any other construction would tend to oust
the courts of jurisdiction and render the award a nullity. But if this be the proper
construction, we would then have the anomaly of a decision by the members of the
Supreme Court, sitting as a board of arbitrators, taken therefrom to the courts and
eventually coming before the Supreme Court, where the Supreme Court would
review the decision of its members acting as arbitrators. Or in the second case, if the
functions performed by the members of the Supreme Court, sitting as a board of
arbitrators, be considered as administrative or quasi judicial in nature, that would
result in the performance of duties which the members of the Supreme Court could
not lawfully take it upon themselves to perform. The present petition also furnishes
an apt illustration of another anomaly, for we find the Supreme Court as a court
asked to determine if the members of the court may be constituted a board of
arbitrators, which is not a court at all
The Supreme Court of the Philippine Islands represents one of the three divisions of
power in our government. It is judicial power and judicial power only which is
exercised by the Supreme Court. Just as the Supreme Court, as the guardian of
constitutional rights, should not sanction usurpations by any other department of the
government, so should it as strictly confine its own sphere of influence to the powers
expressly or by implication conferred on it by the Organic Act. The Supreme Court
and its members should not and cannot be required to exercise any power or to
perform any trust or to assume any duty not pertaining to or connected with the
administering of judicial functions.
The Organic Act provides that the Supreme Court of the Philippine Islands shall
possess and exercise jurisdiction as heretofore provided and such additional
jurisdiction as shall hereafter be prescribed by law (sec. 26). When the Organic Act
speaks of the exercise of "jurisdiction" by the Supreme Court, it could not only mean
the exercise of "jurisdiction" by the Supreme Court acting as a court, and could
hardly mean the exercise of "jurisdiction" by the members of the Supreme Court,
sitting as a board of arbitrators. There is an important distinction between the
Supreme Court as an entity and the members of the Supreme Court. A board of
arbitrators is not a "court" in any proper sense of the term, and possesses none of
the jurisdiction which the Organic Act contemplates shall be exercised by the
Supreme Court
In the last judicial paper from the pen of Chief Justice Taney, it was said:
The power conferred on this court is exclusively judicial, and it cannot be
required or authorized to exercise any other. . . . Its jurisdiction and powers
7
 and duties being defined in the organic law of the government, and being all
strictly judicial, Congress cannot require or authorize the court to exercise
any other jurisdiction or power, or perform any other duty. . . . The award of
execution is a part, and an essential part of every judgment passed by a
court exercising judicial power. It is no judgment, in the legal sense of the
term, without it. Without such an award the judgment would be inoperative
and nugatory, leaving the aggrieved party without a remedy. It would be
merely an opinion, which would remain a dead letter, and without any
operation upon the rights of the parties, unless Congress should at some
future time sanction it, and pass a law authorizing the court to carry its
opinion into effect. Such is not the judicial power confided to this court, in
the exercise of its appellate jurisdiction; yet it is the whole power that the
court is allowed to exercise under this act of Congress. . . . And while it
executes firmly all the judicial powers entrusted to it, the court will carefully
abstain from exercising any power that is not strictly judicial in its character,
and which is not clearly confided to it by the Constitution. . . .
(Gordon vs. United States [1864], 2 Wall., 561; 117 U. S., 697 Appendix.)

Confirming the decision to the basic question at issue, the Supreme Court holds that
section 11 of Act No. 1446 contravenes the maxims which guide the operation of a
democratic government constitutionally established, and that it would be improper
and illegal for the members of the Supreme Court, sitting as a board of arbitrators,
the decision of a majority of whom shall be final, to act on the petition of the Manila
Electric Company. As a result, the members of the Supreme Court decline to
proceed further in the matter.

[G.R. No. 159139. January 13, 2004]

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON
M. AKOL, petitioners, vs. COMMISSION ON ELECTIONS; COMELEC
CHAIRMAN BENJAMIN ABALOS SR, respondents.
DECISION

PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence;[1] or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias. [2] In the present case,
the Commission on Elections approved the assailed Resolution and awarded the
subject Contract not only in clear violation of law and jurisprudence, but also in
reckless disregard of its own bidding rules and procedure. For the automation of the
counting and canvassing of the ballots in the 2004 elections, Comelec awarded the
Contract to Mega Pacific Consortium an entity that had not participated in the

8
bidding. Despite this grant, the poll body signed the actual automation Contract with
Mega Pacific eSolutions, Inc., a company that joined the bidding but had not met the
eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without
adequately checking and observing mandatory financial, technical and legal
requirements. It also accepted the proferred computer hardware and software even
if, at the time of the award, they had undeniably failed to pass eight critical
requirements designed to safeguard the integrity of elections, especially the following
three items:
They failed to achieve the accuracy rating criteria of 99.9995
percent set-up by the Comelec itself
They were not able to detect previously downloaded results at
various canvassing or consolidation levels and to prevent these
from being inputted again
They were unable to print the statutorily required audit trails of
the count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of
discretion committed by Comelec, the Court has no choice but to exercise its solemn
constitutional duty[3] to void the assailed Resolution and the subject Contract. The
illegal, imprudent and hasty actions of the Commission have not only desecrated
legal and jurisprudential norms, but have also cast serious doubts upon the poll
bodys ability and capacity to conduct automated elections. Truly, the pith and soul of
democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by
the illegal and gravely abusive acts of Comelec.
The Case
Before us is a Petition[4] under Rule 65 of the Rules of Court, seeking (1) to
declare null and void Resolution No. 6074 of the Commission on Elections
(Comelec), which awarded Phase II of the Modernization Project of the Commission
to Mega Pacific Consortium (MPC); (2) to enjoin the implementation of any further
contract that may have been entered into by Comelec either with Mega Pacific
Consortium and/or Mega Pacific eSolutions, Inc. (MPEI); and (3) to compel Comelec
to conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled from official documents,
the parties pleadings, as well as from admissions during the Oral Argument on
October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, [5] which authorized
Comelec to conduct a nationwide demonstration of a computerized election system
and allowed the poll body to pilot-test the system in the March 1996 elections in the
Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436 [6] authorizing
Comelec to use an automated election system (AES) for the process of voting,
counting votes and canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated counting machines
(ACMs), computer equipment, devices and materials; and to adopt new electoral
forms and printing materials.
Initially intending to implement the automation during the May 11, 1998
presidential elections, Comelec -- in its Resolution No. 2985 dated February 9,
1998[7] -- eventually decided against full national implementation and limited the
automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due
to the failure of the machines to read correctly some automated ballots in one town,
the poll body later ordered their manual count for the entire Province of Sulu.[8]
In the May 2001 elections, the counting and canvassing of votes for both
national and local positions were also done manually, as no additional ACMs had
been acquired for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a
modernization program for the 2004 elections. It resolved to conduct biddings for the
three (3) phases of its Automated Election System; namely, Phase I - Voter
Registration and Validation System; Phase II - Automated Counting and Canvassing
System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive
Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the May
10, 2004 elections. Upon the request of Comelec, she authorized the release of an
additional P500 million.
On January 28, 2003, the Commission issued an Invitation to Apply for
Eligibility and to Bid, which we quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act
Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to
apply for eligibility and to bid for the procurement by purchase, lease, lease with
option to purchase, or otherwise, supplies, equipment, materials and services
needed for a comprehensive Automated Election System, consisting of three (3)
phases: (a) registration/verification of voters, (b) automated counting and
consolidation of votes, and (c) electronic transmission of election results, with an
approved budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000)
Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of
which at least sixty percent (60%) of the interest belongs to
citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of
which at least sixty percent (60%) of the outstanding capital stock
belongs to citizens of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a
joint venture, i.e., a group of two (2) or more manufacturers,
suppliers and/or distributors that intend to be jointly and severally
9
 responsible or liable for a particular contract, provided that Filipino
ownership thereof shall be at least sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives
Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February 2003,
during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of
Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros,
Manila, upon payment at the Cash Division, Commission on Elections, in cash or
cashiers check, payable to the Commission on Elections, of a non-refundable
amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For this
purpose, interested offerors, vendors, suppliers or lessors have the option to
participate in any or all of the three (3) phases of the comprehensive Automated
Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session
Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should there be
questions on the bid documents, bidders are required to submit their queries in
writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid envelopes
for the supply of the comprehensive Automated Election System shall be at the
Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28
February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders after the
bidding and before the contract is executed. Should such review uncover any
misrepresentation made in the eligibility statements, or any changes in the situation
of the bidder to materially downgrade the substance of such statements, the
COMELEC shall disqualify the bidder upon due notice without any obligation
whatsoever for any expenses or losses that may be incurred by it in the preparation
of its bid.[9]
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain
eligibility criteria for bidders and the schedule of activities for the project bidding, as
follows:
1.) Open to Filipino and foreign corporation duly registered and licensed
to do business and is actually doing business in the Philippines,
subject to Sec. 43 of RA 9184 (An Act providing In the
Modernization Standardization and Regulation of the Procurement
Activities of the Government and for other purposes etc.)
2.) Track Record:
a) For counting machines should have been used in at least one (1)
political exercise with no less than Twenty Million Voters;
b) For verification of voters the reference site of an existing data
base installation using Automated Fingerprint Identification
System (AFIS) with at least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total
project cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of
the Bid documents shall be released at the same time, and the
memorandum of Comm. Resurreccion Z. Borra dated February 7,
2003, the documents to be released on Friday, February 14, 2003
at 2:00 oclock p.m. shall be the eligibility criteria, Terms of
Reference (TOR) and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on
March 5, 2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco
On February 17, 2003, the poll body released the Request for Proposal (RFP)
to procure the election automation machines. The Bids and Awards Committee
(BAC) of Comelec convened a pre-bid conference on February 18, 2003 and gave
prospective bidders until March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers
and/or distributors forming themselves into a joint venture may be entertained,
provided that the Philippine ownership thereof shall be at least 60 percent. Joint
venture is defined in the RFP as a group of two or more manufacturers, suppliers
and/or distributors that intend to be jointly and severally responsible or liable for a
particular contract.
Basically, the public bidding was to be conducted under a two-envelope/two
stage system. The bidders first envelope or the Eligibility Envelope should establish
the bidders eligibility to bid and its qualifications to perform the acts if accepted. On
the other hand, the second envelope would be the Bid Envelope itself. The RFP
outlines the bidding procedures as follows:
25. Determination of Eligibility of Prospective Bidders
25.1 The eligibility envelopes of prospective Bidders shall be opened first
to determine their eligibility. In case any of the requirements specified in
Clause 20 is missing from the first bid envelope, the BAC shall declare
said prospective Bidder as ineligible to bid. Bid envelopes of ineligible
Bidders shall be immediately returned unopened.
25.2 The eligibility of prospective Bidders shall be determined using
simple pass/fail criteria and shall be determined as either eligible or
ineligible. If the prospective Bidder is rated passed for all the legal,
technical and financial requirements, he shall be considered eligible. If
the prospective Bidder is rated failed in any of the requirements, he shall
be considered ineligible.
26. Bid Examination/Evaluation
26.1 The BAC will examine the Bids to determine whether they are
complete, whether any computational errors have been made, whether
required securities have been furnished, whether the documents have
been properly signed, and whether the Bids are generally in order.
26.2 The BAC shall check the submitted documents of each Bidder
against the required documents enumerated under Clause 20, to
10
 ascertain if they are all present in the Second bid envelope (Technical
Envelope). In case one (1) or more of the required documents is missing,
the BAC shall rate the Bid concerned as failed and immediately return to
the Bidder its Third bid envelope (Financial Envelope)
unopened. Otherwise, the BAC shall rate the first bid envelope as
passed.
26.3 The BAC shall immediately open the Financial Envelopes of the
Bidders whose Technical Envelopes were passed or rated on or above
the passing score. Only Bids that are determined to contain all the bid
requirements for both components shall be rated passed and shall
immediately be considered for evaluation and comparison.
26.4 In the opening and examination of the Financial Envelope, the BAC
shall announce and tabulate the Total Bid Price as
calculated. Arithmetical errors will be rectified on the following basis: If
there is a discrepancy between words and figures, the amount in words
will prevail. If there is a discrepancy between the unit price and the total
price that is obtained by multiplying the unit price and the quantity, the
unit price shall prevail and the total price shall be corrected accordingly. If
there is a discrepancy between the Total Bid Price and the sum of the
total prices, the sum of the total prices prevail and the Total Bid Price
shall be corrected accordingly.
26.5 Financial Proposals which do not clearly state the Total Bid Price
shall be rejected. Also, Total Bid Price as calculated that exceeds the
approved budget for the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and
fees associated with carrying out all the elements of the proposed
Contract, including but not limited to, license fees, freight charges and
taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated
passed and rank the same in ascending order.
xxxxxxxxx
29. Postqualification
29.1 The BAC will determine to its satisfaction whether the Bidder
selected as having submitted the lowest calculated bid is qualified to
satisfactorily perform the Contract.
29.2 The determination will take into account the Bidders financial,
technical and production capabilities/resources. It will be based upon an
examination of the documentary evidence of the Bidders qualification
submitted by the Bidder as well as such other information as the BAC
deems necessary and appropriate.
29.3 A bid determined as not substantially responsive will be rejected by
the BAC and may not subsequently be made responsive by the Bidder by
correction of the non-conformity.
29.4 The BAC may waive any informality or non-conformity or irregularity
in a bid which does not constitute a material deviation, provided such
waiver does not prejudice or affect the relative ranking of any Bidder.
29.5 Should the BAC find that the Bidder complies with the legal, financial
and technical requirements, it shall make an affirmative determination
which shall be a prerequisite for award of the Contract to the
Bidder. Otherwise, it will make a negative determination which will result
in rejection of the Bidders bid, in which event the BAC will proceed to the
next lowest calculated bid to make a similar determination of that Bidders
capabilities to perform satisfactorily.[12]
Out of the 57 bidders,[13] the BAC found MPC and the Total Information
Management Corporation (TIMC) eligible. For technical evaluation, they were
referred to the BACs Technical Working Group (TWG) and the Department of
Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST
said that both MPC and TIMC had obtained a number of failed marks in the technical
evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003,
promulgated Resolution No. 6074 awarding the project to MPC. The Commission
publicized this Resolution and the award of the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter [14] to Comelec Chairman
Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC
due to glaring irregularities in the manner in which the bidding process had been
conducted. Citing therein the noncompliance with eligibility as well as technical and
procedural requirements (many of which have been discussed at length in the
Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003,[15] the Comelec chairman -- speaking
through Atty. Jaime Paz, his head executive assistant -- rejected the protest and
declared that the award would stand up to the strictest scrutiny.
Hence, the present Petition.[16]
The Issues
In their Memorandum, petitioners raise the following issues for our
consideration:
1. The COMELEC awarded and contracted with a non-eligible entity; x x x
2. Private respondents failed to pass the Technical Test as required in the
RFP. Notwithstanding, such failure was ignored. In effect, the
COMELEC changed the rules after the bidding in effect changing
the nature of the contract bidded upon.
3. Petitioners have locus standi.
4. Instant Petition is not premature. Direct resort to the Supreme Court is
justified.[17]
In the main, the substantive issue is whether the Commission on Elections, the
agency vested with the exclusive constitutional mandate to oversee elections,
gravely abused its discretion when, in the exercise of its administrative functions, it
awarded to MPC the contract for the second phase of the comprehensive Automated
Election System.
Before discussing the validity of the award to MPC, however, we deem it proper
to first pass upon the procedural issues: the legal standing of petitioners and the
alleged prematurity of the Petition.
11

This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as
they are not challenging the validity or constitutionality of RA 8436. Moreover,
petitioners supposedly admitted during the Oral Argument that no law had been
violated by the award of the Contract. Furthermore, they allegedly have no actual
and material interest in the Contract and, hence, do not stand to be injured or
prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers,
registered voters and concerned citizens -- respond that the issues central to this
case are of transcendental importance and of national interest. Allegedly, Comelecs
flawed bidding and questionable award of the Contract to an unqualified entity would
impact directly on the success or the failure of the electoral process. Thus, any taint
on the sanctity of the ballot as the expression of the will of the people would
inevitably affect their faith in the democratic system of government. Petitioners
further argue that the award of any contract for automation involves disbursement of
public funds in gargantuan amounts; therefore, public interest requires that the laws
governing the transaction must be followed strictly.
We agree with petitioners. Our nation’s political and economic future virtually
hangs in the balance, pending the outcome of the 2004 elections. Hence, there can
be no serious doubt that the subject matter of this case is a matter of public concern
and imbued with public interest;[18] in other words, it is of paramount public
interest[19] and transcendental importance.[20] This fact alone would justify relaxing the
rule on legal standing, following the liberal policy of this Court whenever a case
involves an issue of overarching significance to our society. [21] Petitioners legal
standing should therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a
claim of illegal disbursement of public funds,[22] or if public money is being deflected
to any improper purpose;[23] or when petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law.
[24]
In the instant case, individual petitioners, suing as taxpayers, assert a material
interest in seeing to it that public funds are properly and lawfully used. In the Petition,
they claim that the bidding was defective, the winning bidder not a qualified entity,
and the award of the Contract contrary to law and regulation. Accordingly, they seek
to restrain respondents from implementing the Contract and, necessarily, from
making any unwarranted expenditure of public funds pursuant thereto. Thus, we hold
that petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first
utilized the protest mechanism available to them under RA 9184, the Government
Procurement Reform Act, for the settlement of disputes pertaining to procurement
contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and
Awards Committee in all stages of procurement may be lodged with the head of the
procuring entity by filing a verified position paper and paying a protest fee. Section
57 of the same law mandates that in no case shall any such protest stay or delay the
bidding process, but it must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to
only after the protests contemplated by the statute shall have been
completed. Cases filed in violation of this process are to be dismissed for lack of
jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the
head of the procuring entity, and court actions shall be instituted pursuant to Rule 65
of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never
questioned the BAC Report finding MPC eligible to bid and recommending the award
of the Contract to it (MPC). According to respondents, the Report should have been
appealed to the Comelec en banc, pursuant to the aforementioned sections of RA
9184. In the absence of such appeal, the determination and recommendation of the
BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated
April 15, 2003, awarding the project to Respondent MPC even before the BAC
managed to issue its written report and recommendation on April 21, 2003. Thus,
how could petitioners have appealed the BACs recommendation or report to the
head of the procuring entity (the chairman of Comelec), when the Comelec en
banc had already approved the award of the contract to MPC even before petitioners
learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003 session, it received
and approved the verbal report and recommendation of the BAC for the award of the
Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and
recommendation by submitting it in writing on April 21, 2003. Respondents insist that
the law does not require that the BAC Report be in writing before Comelec can act
thereon; therefore, there is allegedly nothing irregular about the Report as well as the
en banc Resolution.
However, it is obvious that petitioners could have appealed the BACs report
and recommendation to the head of the procuring entity (the Comelec
chair) only upon their discovery thereof, which at the very earliest would have been
on April 21, 2003, when the BAC actually put its report in writing and finally released
it. Even then, what would have been the use of protesting/appealing the report to the
Comelec chair, when by that time the Commission en banc (including the chairman
himself) had already approved the BAC Report and awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the
verbal BAC report on April 15, 2003 (immediately after the en banc session), at that
12
point the Commission en banc had already given its approval to the BAC Report
along with the award to MPC. To put it bluntly, the Comelec en banc itself made it
legally impossible for petitioners to avail themselves of the administrative remedy
that the Commission is so impiously harping on. There is no doubt that they had not
been accorded the opportunity to avail themselves of the process provided under
Section 55 of RA 9184, according to which a protest against a decision of the BAC
may be filed with the head of the procuring entity. Nemo tenetur ad impossible,[26] to
borrow private respondents favorite Latin excuse.[27]
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice,
we would just want to put forward a few observations regarding the BAC Report and
the Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the
Report submitted by the BAC came only after the former had already awarded the
Contract, because the latter had been asked to render its report and
recommendation orally during the Commissions en banc session on April 15, 2003.
Accordingly, Comelec supposedly acted upon such oral recommendation and
approved the award to MPC on the same day, following which the recommendation
was subsequently reduced into writing on April 21, 2003. While not entirely outside
the realm of the possible, this interesting and unique spiel does not speak well of the
process that Comelec supposedly went through in making a critical decision with
respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable
Commissioners would have been extremely conscious of the overarching need for
utter transparency. They would have scrupulously avoided the slightest hint of
impropriety, preferring to maintain an exacting regularity in the performance of their
duties, instead of trying to break a speed record in the award of multi-billion-peso
contracts. After all, between April 15 and April 21 were a mere six (6) days. Could
Comelec not have waited out six more days for the written report of the BAC, instead
of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to
explain the nature of the Commissions dire need to act immediately without awaiting
the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with
which Comelec acted to approve the multi-billion-peso deal, with its claim of having
been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to
lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation
on the part of the Comelec officials involved, it should nevertheless be conceded that
this cart-before-the-horse maneuver (awarding of the Contract ahead of the BACs
written report) would definitely serve as a clever and effective way of averting and
frustrating any impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of
exhausting administrative remedies. Respondents may not have realized it, but the
letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 [28] serves to
eliminate the prematurity issue as it was an actual written protest against the
decision of the poll body to award the Contract. The letter was signed by/for, inter
alia, two of herein petitioners: the Information Technology Foundation of the
Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the procedure
outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that
petitioners need not exhaust administrative remedies in the light of Paat v. Court of
Appeals.[29]Paat enumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or
excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency
concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter
ego of the President bears the implied and assumed approval of
the latter,
(7) when to require exhaustion of administrative remedies would be
unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate
remedy, and
(11) when there are circumstances indicating the urgency of judicial
intervention.[30]
The present controversy precisely falls within the exceptions listed as Nos. 7,
10 and 11: (7) when to require exhaustion of administrative remedies would be
unreasonable; (10) when the rule does not provide a plain, speedy and adequate
remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention. As already stated, Comelec itself made the exhaustion of administrative
remedies legally impossible or, at the very least, unreasonable.
In any event, the peculiar circumstances surrounding the unconventional
rendition of the BAC Report and the precipitate awarding of the Contract by the
Comelec en banc -- plus the fact that it was racing to have its Contract with MPC
implemented in time for the elections in May 2004 (barely four months away) -- have
combined to bring about the urgent need for judicial intervention, thus prompting this
Court to dispense with the procedural exhaustion of administrative remedies in this
case.
Main Substantive Issue:
Validity of the Award to MPC
13
 We come now to the meat of the controversy. Petitioners contend that the
award is invalid, since Comelec gravely abused its discretion when it did the
following:
1. Awarded the Contract to MPC though it did not even participate in the
bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite
the issuance by the BAC of its Report, which formed the basis of the assailed
Resolution, only on April 21, 2003[31]
4. Awarded the Contract, notwithstanding the fact that during the bidding
process, there were violations of the mandatory requirements of RA 8436 as well as
those set forth in Comelecs own Request for Proposal on the automated election
system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the
failure of the bidders to pass the technical tests conducted by the Department of
Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the
bidding for the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the
Oral Argument, the Court deems it sufficient to focus discussion on the
following major areas of concern that impinge on the issue of grave abuse of
discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical
tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the
award, and their effect on the present controversy
A. Failure to Establish the Identity, Existence and Eligibility of the Alleged
Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents
insist that, contrary to petitioners allegations, the bidder was not Mega Pacific
eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11
days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium
(MPC), of which MPEI was but a part. As proof thereof, they point to the March 7,
2003 letter of intent to bid, signed by the president of MPEI allegedly for and on
behalf of MPC. They also call attention to the official receipt issued to MPC,
acknowledging payment for the bidding documents, as proof that it was the
consortium that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory --
Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent)
For: Mega Pacific Consortium -- and without any further proof, does not by itself
prove the existence of the consortium. It does not show that MPEI or its president
have been duly pre-authorized by the other members of the putative consortium to
represent them, to bid on their collective behalf and, more important, to commit them
jointly and severally to the bid undertakings. The letter is purely self-serving and
uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the
bidding documents, constitute proof that it was the purported consortium that
participated in the bidding. Such receipts are issued by cashiers without any legally
sufficient inquiry as to the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and
qualification) of the putative consortium, Comelecs BAC should have examined the
bidding documents submitted on behalf of MPC. They would have easily discovered
the following fatal flaws.
Two-Envelope, Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed
by Comelec under its RFP (Request for Proposal for the Automation of the 2004
Election) mandated the use of a two-envelope, two-stage system. A bidders first
envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was accepted, while
the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of
incorporation, business registrations, licenses and permits, mayors permit, VAT
certification, and so forth; technical documents containing documentary evidence to
establish the track record of the bidder and its technical and production capabilities
to perform the contract; and financial documents, including audited financial
statements for the last three years, to establish the bidders financial capacity.
In the case of a consortium or joint venture desirous of participating in the
bidding, it goes without saying that the Eligibility Envelope would necessarily have to
include a copy of the joint venture agreement, the consortium agreement or
memorandum of agreement -- or a business plan or some other instrument of similar
import -- establishing the due existence, composition and scope of such
aggrupation. Otherwise, how would Comelec know who it was dealing with, and
whether these parties are qualified and capable of delivering the products and
services being offered for bidding?[32]
In the instant case, no such instrument was submitted to Comelec during the
bidding process. This fact can be conclusively ascertained by scrutinizing the two-
inch thick Eligibility Requirements file submitted by Comelec last October 9, 2003, in
partial compliance with this Courts instructions given during the Oral Argument. This
file purports to replicate the eligibility documents originally submitted to Comelec by
MPEI allegedly on behalf of MPC, in connection with the bidding conducted in March
2003. Included in the file are the incorporation papers and financial statements of the
members of the supposed consortium and certain certificates, licenses and permits
issued to them.
However, there is no sign whatsoever of any joint venture agreement,
consortium agreement, memorandum of agreement, or business plan executed
among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to
the Comelec for its consideration, as part of the bidding process.
14

It thus follows that, prior the award of the Contract, there was no documentary
or other basis for Comelec to conclude that a consortium had actually been formed
amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT. [33] Neither
was there anything to indicate the exact relationships between and among these
firms; their diverse roles, undertakings and prestations, if any, relative to the
prosecution of the project, the extent of their respective investments (if any) in the
supposed consortium or in the project; and the precise nature and extent of their
respective liabilities with respect to the contract being offered for bidding. And apart
from the self-serving letter of March 7, 2003, there was not even any indication that
MPEI was the lead company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec had no
basis at all for determining that the alleged consortium really existed and was eligible
and qualified; and that the arrangements among the members were satisfactory and
sufficient to ensure delivery on the Contract and to protect the governments interest.
Notwithstanding such deficiencies, Comelec still deemed the consortium
eligible to participate in the bidding, proceeded to open its Second Envelope, and
eventually awarded the bid to it, even though -- per the Comelecs own RFP -- the
BAC should have declared the MPC ineligible to bid and returned the Second (Bid)
Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a
consortium or joint venture, it should not have allowed them to avail themselves of
the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer
Law), as amended by RA 7718. This provision states in part that a joint
venture/consortium proponent shall be evaluated based on the individual
or collective experience of the member-firms of the joint venture or consortium and of
the contractor(s) that it has engaged for the project. Parenthetically, respondents
have uniformly argued that the said IRR of RA 6957, as amended, have suppletory
application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own
experience, financial and operational track record or lack thereof, it would surely not
have qualified and would have been immediately considered ineligible to bid, as
respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily
failing to observe its own rules, policies and guidelines with respect to the bidding
process, thereby negating a fair, honest and competitive bidding.
Commissioners Not Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner
Florentino Tuason Jr., given in open court during the Oral Argument last October 7,
2003. The good commissioner affirmed that he was aware, of his own personal
knowledge, that there had indeed been a written agreement among the consortium
members,[34] although it was an internal matter among them, [35] and of the fact that it
would be presented by counsel for private respondent.[36]
However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice
Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was the
commissioner-in-charge of Comelecs Legal Department, he had never seen, even
up to that late date, the agreement he spoke of.[37] Under further questioning, he was
likewise unable to provide any information regarding the amounts invested into the
project by several members of the claimed consortium.[38] A short while later, he
admitted that the Commission had not taken a look at the agreement (if any).[39]
He tried to justify his position by claiming that he was not a member of the
BAC. Neither was he the commissioner-in-charge of the Phase II Modernization
project (the automated election system); but that, in any case, the BAC and the
Phase II Modernization Project Team did look into the aspect of the composition of
the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had
taken charge of evaluating the eligibility, qualifications and credentials of the
consortium-bidder, still, in all probability, the former would have referred the task to
Commissioner Tuason, head of Comelecs Legal Department. That task was the
appreciation and evaluation of the legal effects and consequences of the terms,
conditions, stipulations and covenants contained in any joint venture agreement,
consortium agreement or a similar document -- assuming of course that any of these
was available at the time. The fact that Commissioner Tuason was barely aware of
the situation bespeaks the complete absence of such document, or the utter failure
or neglect of the Comelec to examine it -- assuming it was available at all -- at the
time the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason
basically contradicted his statements in open court about there being one written
agreement among all the consortium members, when he subsequently referred[40] to
the four (4) Memoranda of Agreement (MOAs) executed by them.[41]
At this juncture, one might ask: What, then, if there are four MOAs instead of
one or none at all? Isnt it enough that there are these corporations coming together
to carry out the automation project? Isnt it true, as respondent aver, that nowhere in
the RFP issued by Comelec is it required that the members of the joint venture
execute a single written agreement to prove the existence of a joint venture. Indeed,
the intention to be jointly and severally liable may be evidenced not only by a single
joint venture agreement, but also by supplementary documents executed by the
parties signifying such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The
problem is that Comelec never bothered to check. It never based its decision on
documents or other proof that would concretely establish the existence of the
claimed consortium or joint venture or agglomeration. It relied merely on the self-
serving representation in an uncorroborated letter signed by only one individual,
claiming that his company represented a consortium of several different
corporations. It concluded forthwith that a consortium indeed existed, composed of
such and such members, and thereafter declared that the entity was eligible to bid.
15
 True, copies of financial statements and incorporation papers of the alleged
consortium members were submitted. But these papers did not establish the
existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium or
joint venture. For instance, the papers may have been intended to show that those
companies were each qualified to be a sub-contractor (and nothing more) in a major
project. Those documents did not by themselves support the assumption that a
consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and
eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and
the members joint and several liability therefor, Comelec nevertheless assumed that
such consortium existed and was eligible. It then went ahead and considered the bid
of MPC, to which the Contract was eventually awarded, in gross violation of the
formers own bidding rules and procedures contained in its RFP. Therein lies
Comelecs grave abuse of discretion.
Sufficiency of the Four Agreements
Instead of one multilateral agreement executed by, and effective and binding
on, all the five consortium members -- as earlier claimed by Commissioner Tuason in
open court -- it turns out that what was actually executed were four (4) separate and
distinct bilateral Agreements.[42] Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as these were not
included in the Eligibility Documents. These Agreements are as follows:
A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv
A Teaming Agreement between MPEI and Election.com Ltd.
A Teaming Agreement between MPEI and ePLDT.
In sum, each of the four different and separate bilateral Agreements is valid and
binding only between MPEI and the other contracting party, leaving the other
consortium members total strangers thereto. Under this setup, MPEI
dealt separately with each of the members, and the latter (WeSolv, SK C&C,
Election.com, and ePLDT) in turn had nothing to do with one another, each dealing
only with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose
of enabling the corporations to still qualify (even at that late stage) as a consortium
or joint venture, since the first two Agreements had allegedly set forth the joint and
several undertakings among the parties, whereas the latter two clarified the parties
respective roles with regard to the Project, with MPEI being the independent
contractor and Election.com and ePLDT the subcontractors.
Additionally, the use of the phrase particular contract in the Comelecs Request
for Proposal (RFP), in connection with the joint and several liabilities of companies in
a joint venture, is taken by them to mean that all the members of the joint venture
need not be solidarily liable for the entire project or joint venture, because it is
sufficient that the lead company and the member in charge of a particular contract or
aspect of the joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four
bilateral Agreements to Comelec after the end of the bidding process did nothing to
eliminate the grave abuse of discretion it had already committed on April 15, 2003.
Deficiencies Have Not Been Cured
In any event, it is also claimed that the automation Contract awarded by
Comelec incorporates all documents executed by the consortium members, even if
these documents are not referred to therein. The basis of this assertion appears to
be the passages from Section 1.4 of the Contract, which is reproduced as follows:
All Contract Documents shall form part of the Contract even if they or any one of
them is not referred to or mentioned in the Contract as forming a part thereof. Each
of the Contract Documents shall be mutually complementary and explanatory of
each other such that what is noted in one although not shown in the other shall be
considered contained in all, and what is required by any one shall be as binding as if
required by all, unless one item is a correction of the other.
The intent of the Contract Documents is the proper, satisfactory and timely execution
and completion of the Project, in accordance with the Contract
Documents. Consequently, all items necessary for the proper and timely execution
and completion of the Project shall be deemed included in the Contract.
Thus, it is argued that whatever perceived deficiencies there were in the
supplementary contracts -- those entered into by MPEI and the other members of the
consortium as regards their joint and several undertakings -- have been cured. Better
still, such deficiencies have supposedly been prevented from arising as a result of
the above-quoted provisions, from which it can be immediately established that each
of the members of MPC assumes the same joint and several liability as the other
members.
The foregoing argument is unpersuasive. First, the contract being referred to,
entitled The Automated Counting and Canvassing Project Contract, is between
Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not
MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention
of a consortium or joint venture, of members thereof, much less of joint and several
liability. Supposedly executed sometime in May 2003,[43] the Contract bears a
notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing
as president of MPEI (not for and on behalf of MPC), along with that of the Comelec
chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and
perform the Services under the Contract, in accordance with the appendices thereof;
nothing whatsoever is said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above
do not have the effect of curing (much less preventing) deficiencies in the bilateral
agreements entered into by MPEI with the other members of the consortium, with
respect to their joint and several liabilities. The term Contract Documents, as used in
the quoted passages of Section 1.4, has a well-defined meaning and actually refers
only to the following documents:
The Contract itself along with its appendices
16
 The Request for Proposal (also known as Terms of Reference)
issued by the Comelec, including the Tender Inquiries and Bid
Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be understood as
referring to or including the MOAs and the Teaming Agreements entered into by
MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and
admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the
MOAs and the Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that,
from the above-quoted provisions, it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other
members. Earlier, respondents claimed exactly the opposite -- that the two MOAs
(between MPEI and SK C&C, and between MPEI and WeSolv) had set forth the joint
and several undertakings among the parties; whereas the two Teaming
Agreements clarified the parties respective roles with regard to the Project, with
MPEI being the independent contractor and Election.com and ePLDT the
subcontractors.
Obviously, given the differences in their relationships, their respective liabilities
cannot be the same. Precisely, the very clear terms and stipulations contained in the
MOAs and the Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv,
Election.com and ePLDT -- negate the idea that these members are on a par with
one another and are, as such, assuming the same joint and several liability.
Moreover, respondents have earlier seized upon the use of the term particular
contract in the Comelecs Request for Proposal (RFP), in order to argue that all the
members of the joint venture did not need to be solidarily liable for the entire
project or joint venture. It was sufficient that the lead company and the member in
charge of a particular contract or aspect of the joint venture would agree to be
solidarily liable. The glaring lack of consistency leaves us at a loss. Are respondents
trying to establish the same joint and solidary liability among all the members or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and
the MPEI confirms the solidary undertaking of the lead company and the consortium
member concerned for each particular Contract, inasmuch as the position of MPEI
and anyone else performing the services contemplated under the Contract is
described therein as that of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the
first place, the contractual provision being relied upon by respondents is Article 14,
Independent Contractors, which states: Nothing contained herein shall be construed
as establishing or creating between the COMELEC and MEGA the relationship of
employee and employer or principal and agent, it being understood that the position
of MEGA and of anyone performing the Services contemplated under this Contract,
is that of an independent contractor.
Obviously, the intent behind the provision was simply to avoid the creation of an
employer-employee or a principal-agent relationship and the complications that it
would produce. Hence, the Article states that the role or position of MPEI, or anyone
else performing on its behalf, is that of an independent contractor. It is obvious to the
Court that respondents are stretching matters too far when they claim that, because
of this provision, the Contract in effect confirms the solidary undertaking of the lead
company and the consortium member concerned for the particular phase of the
project. This assertion is an absolute non sequitur.
Enforcement of Liabilities Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the
consortium members under the Civil Code provisions on partnership, reasoning that
MPEI et al. represented themselves as partners and members of MPC for purposes
of bidding for the Project. They are, therefore, liable to the Comelec to the extent
that the latter relied upon such representation. Their liability as partners is solidary
with respect to everything chargeable to the partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must
be recalled that SK C&C, WeSolv, Election.com and ePLDT never represented
themselves as partners and members of MPC, whether for purposes of bidding or for
something else. It was MPEI alone that represented them to be members of a
consortium it supposedly headed. Thus, its acts may not necessarily be held against
the other members.
Second, this argument of the OSG in its Memorandum[44] might possibly
apply in the absence of a joint venture agreement or some other writing that
discloses the relationship of the members with one another. But precisely, this case
does not deal with a situation in which there is nothing in writing to serve as
reference, leaving Comelec to rely on mere representations and therefore justifying a
falling back on the rules on partnership. For, again, the terms and stipulations of the
MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming
Agreements of MPEI with Election.com and ePLDT (copies of which have been
furnished the Comelec) are very clear with respect to the extent and the limitations of
the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while
joint and several with MPEI, are limited only to the particular areas of work wherein
their services are engaged or their products utilized. As for Election.com and ePLDT,
their separate Teaming Agreements specifically ascribe to them the role of
subcontractor vis--vis MPEI as contractor and, based on the terms of their particular
agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally
liable to Comelec.[45] It follows then that in the instant case, there is no justification for
anyone, much less Comelec, to resort to the rules on partnership and partners
liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its
Members
Respondents declare that, for purposes of assessing the eligibility of the bidder,
the members of MPC should be evaluated on a collective basis. Therefore, they
contend, the failure of MPEI to submit financial statements (on account of its recent
17
incorporation) should not by itself disqualify MPC, since the other members of the
consortium could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the
members of MPC, their contribution of assets and sharing of risks, and the
community of their interest in the performance of the Contract lead to these
reasonable conclusions: (1) that their collective qualifications should be the basis for
evaluating their eligibility; (2) that the sheer enormity of the project renders it
improbable to expect any single entity to be able to comply with all the eligibility
requirements and undertake the project by itself; and (3) that, as argued by the OSG,
the RFP allows bids from manufacturers, suppliers and/or distributors that have
formed themselves into a joint venture, in recognition of the virtual impossibility of a
single entitys ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of
RA 6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be
applicable, as proponents of BOT projects usually form joint ventures or
consortiums. Under the IRR, a joint venture/consortium proponent shall be evaluated
based on the individual or the collective experience of the member-firms of the joint
venture/consortium and of the contractors the proponent has engaged for the
project.
Unfortunately, this argument seems to assume that the collective nature of the
undertaking of the members of MPC, their contribution of assets and sharing of risks,
and the community of their interest in the performance of the Contract entitle MPC to
be treated as a joint venture or consortium; and to be evaluated accordingly on the
basis of the members collective qualifications when, in fact, the evidence before the
Court suggest otherwise.
This Court in Kilosbayan v. Guingona[46] defined joint venture as an association
of persons or companies jointly undertaking some commercial enterprise; generally,
all contribute assets and share risks. It requires a community of interest in the
performance of the subject matter, a right to direct and govern the policy in
connection therewith, and [a] duty, which may be altered by agreement to share both
in profit and losses.
Going back to the instant case, it should be recalled that the automation
Contract with Comelec was not executed by the consortium MPC -- or by MPEI for
and on behalf of MPC -- but by MPEI, period. The said Contract contains no mention
whatsoever of any consortium or members thereof. This fact alone seems to
contradict all the suppositions about a joint undertaking that would normally apply to
a joint venture or consortium: that it is a commercial enterprise involving a
community of interest, a sharing of risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the
Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc.,
dated March 5, 2003.The body of the MOA consists of just seven (7) short
paragraphs that would easily fit in one page. It reads as follows:
1. The parties agree to cooperate in successfully implementing the Project in the
substance and form as may be most beneficial to both parties and other
subcontractors involved in the Project.
2. Mega Pacific shall be responsible for any contract negotiations and signing with
the COMELEC and, subject to the latters approval, agrees to give WeSolv an
opportunity to be present at meetings with the COMELEC concerning WeSolvs
portion of the Project.
3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular
products and/or services supplied by the former for the Project.
4. Each party shall bear its own costs and expenses relative to this agreement
unless otherwise agreed upon by the parties.
5. The parties undertake to do all acts and such other things incidental to, necessary
or desirable or the attainment of the objectives and purposes of this Agreement.
6. In the event that the parties fail to agree on the terms and conditions of the supply
of the products and services including but not limited to the scope of the products
and services to be supplied and payment terms, WeSolv shall cease to be bound by
its obligations stated in the aforementioned paragraphs.
7. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree
to settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines. (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C
Co. Ltd., dated March 9, 2003, the body of which consists of only six (6) paragraphs,
which we quote:
1. All parties agree to cooperate in achieving the Consortiums objective of
successfully implementing the Project in the substance and form as may be most
beneficial to the Consortium members and in accordance w/ the demand of the RFP.
2. Mega Pacific shall have full powers and authority to represent the Consortium with
the Comelec, and to enter and sign, for and in behalf of its members any and all
agreement/s which maybe required in the implementation of the Project.
3. Each of the individual members of the Consortium shall be jointly and severally
liable with the Lead Firm for the particular products and/or services supplied by such
individual member for the project, in accordance with their respective undertaking or
sphere of responsibility.
4. Each party shall bear its own costs and expenses relative to this agreement
unless otherwise agreed upon by the parties.
5. The parties undertake to do all acts and such other things incidental to, necessary
or desirable for the attainment of the objectives and purposes of this Agreement.
6. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree
to settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines. (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any specifics or details as to the exact nature and
scope of the parties respective undertakings, performances and deliverables under
the Agreement with respect to the automation project. Likewise, the two Agreements
are quite bereft of pesos-and-centavos data as to the amount of investments each
party contributes, its respective share in the revenues and/or profit from the Contract
18
with Comelec, and so forth -- all of which are normal for agreements of this deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR
nature. Yet, according to public and private respondents, the participation of MPEI, for RA 6957 as amended.
WeSolv and SK C&C comprises fully 90 percent of the entire undertaking with According to the aforementioned provision, if the project proponent is a joint
respect to the election automation project, which is worth about P1.3 billion. venture or consortium, the members or participants thereof are required to submit a
sworn statement that, if awarded the contract, they shall bind themselves to be
As for Election.com and ePLDT, the separate Teaming Agreements they jointly, severally and solidarily liable for the project proponents obligations
entered into with MPEI for the remaining 10 percent of the entire project undertaking thereunder. This provision was supposed to mirror Section 5 of RA 6957, as
are ironically much longer and more detailed than the MOAs discussed amended, which states: In all cases, a consortium that participates in a bid must
earlier. Although specifically ascribing to them the role of subcontractor vis--vis MPEI present proof that the members of the consortium have bound themselves jointly
as contractor, these Agreements are, however, completely devoid of any pricing data and severally to assume responsibility for any project. The withdrawal of any
or payment terms. Even the appended Schedules supposedly containing prices of member of the consortium prior to the implementation of the project could be a
goods and services are shorn of any price data. Again, as mentioned earlier, based ground for the cancellation of the contract.
on the terms of their particular Agreements, neither Election.com nor ePLDT -- with
MPEI -- is jointly and severally liable to Comelec. The Court has certainly not seen any joint and several undertaking by the MPC
members that even approximates the tenor of that which is described above. We fail
It is difficult to imagine how these bare Agreements -- especially the first two -- to see why respondents should invoke the IRR if it is for their benefit, but refuse to
could be implemented in practice; and how a dispute between the parties or a claim comply with it otherwise.
by Comelec against them, for instance, could be resolved without lengthy and
debilitating litigations. Absent any clear-cut statement as to the exact nature and B. DOST Technical Tests Flunked by the Automated Counting Machines
scope of the parties respective undertakings, commitments, deliverables and Let us now move to the second subtopic, which deals with the substantive
covenants, one party or another can easily dodge its obligation and deny or contest issue: the ACMs failure to pass the tests of the Department of Science and
its liability under the Agreement; or claim that it is the other party that should have Technology (DOST).
delivered but failed to.
After respondent consortium and the other bidder, TIM, had submitted their
Likewise, in the absence of definite indicators as to the amount of investments respective bids on March 10, 2003, the Comelecs BAC -- through its Technical
to be contributed by each party, disbursements for expenses, the parties respective Working Group (TWG) and the DOST -- evaluated their technical
shares in the profits and the like, it seems to the Court that this situation could readily proposals. Requirements that were highly technical in nature and that required the
give rise to all kinds of misunderstandings and disagreements over money matters. use of certain equipment in the evaluation process were referred to the DOST for
testing. The Department reported thus:
Under such a scenario, it will be extremely difficult for Comelec to enforce the
supposed joint and several liabilities of the members of the consortium. The Court is TEST RESULTS MATRIX[47]
not even mentioning the possibility of a situation arising from a failure of WeSolv and [Technical Evaluation of Automated Counting Machine]
MPEI to agree on the scope, the terms and the conditions for the supply of the KEY TOTAL
MEGA-PACIFIC
products and services under the Agreement. In that situation, by virtue of paragraph REQUIREMENTS INFORMATION
CONSORTIUM
6 of its MOA, WeSolv would perforce cease to be bound by its obligations -- [QUESTIONS] MANAGEMENT
including its joint and solidary liability with MPEI under the MOA -- and could YES NO YES NO
forthwith disengage from the project. Effectively, WeSolv could at any time 1. Does the
unilaterally exit from its MOA with MPEI by simply failing to agree. Where would that machine have an
outcome leave MPEI and Comelec? accuracy rating
of at least 99.995
To the Court, this strange and beguiling arrangement of MPEI with the other percent
companies does not qualify them to be treated as a consortium or joint venture, at At
least of the type that government agencies like the Comelec should be dealing √ √
COLD environme
with. With more reason is it unable to agree to the proposal to evaluate the members ntal condition
of MPC on a collective basis. √ √
At NORMAL
environmental co
In any event, the MPC members claim to be a joint venture/consortium; and √ √
nditions
respondents have consistently been arguing that the IRR for RA 6957, as amended, At HARSH
should be applied to the instant case in order to allow a collective evaluation of environmental
consortium members. Surprisingly, considering these facts, respondents have not conditions

19
2. Accurately Note: This
records and particular
reports the date external media is requiremen
and time of the encrypted? t needs
√ √
start and end of further
counting of verification
ballots per 9. Physical key or
precinct? similar device
3. Prints election allows, limits, or
√ √
returns without restricts
any loss of date √ √ operation of the
during generation machine?
of such reports? √
4. Uninterruptible Note: This
back-up power particular
10. CPU speed is at
system, that will √ requiremen
least 400mHz?
engage t needs
immediately to further
allow operation verification
of at least 10 √ √ 11. Port to allow use
minutes after of dot-matrix √ √
outage, power printers?
surge or 12. Generates
abnormal printouts of the
electrical election returns
occurrences? in a format
√ specified by the
Note: This COMELEC?
5. Machine reads particular Generates √ √
two-sided ballots √ requiremen printouts
√ √
in one pass? t needs In format
further specified by
verification COMELEC
6. Machine can 13. Prints election
detect previously returns without
counted ballots any loss of data √ √
and prevent during generation
previously √ √ of such report?
counted ballots 14. Generates an √ √
from being audit trail of the
counted more counting √
than once? machine, both
√ hard copy and
7. Stores results
Note: This soft copy?
of counted votes
particular √
by precinct in
√ requiremen Hard copy Note: This
external
t needs particular
(removable)
further Soft copy requiremen
storage device?
verification t needs
8. Data stored in √ √ further

20
 other information,
verification
are indeed zero
15. Does the or null?
City/Municipal 18. Does the system
Canvassing consolidate
√
System results from all
Note: This
consolidate precincts in the
√ particular
results from all city/municipality
Note: This √ requiremen
precincts within it using the data
particular t needs
using the storage device
√ requiremen further
encrypted soft coming from the
t needs verification
copy of the data counting
further
generated by the machine?
verification
counting √
machine and Note: This
stored on the particular
19. Is the machine
removable data √ requiremen
100% accurate?
storage device? t needs
16. Does the further
City/Municipal verification
Canvassing 20. Is the Program
System able to detect √
consolidate previously Note: This
results from all downloaded particular
√ √
precincts within it precinct results √ requiremen
Note: This Note: This
using the and prevent t needs
particular particular
encrypted soft these from being further
requiremen requiremen
copy of the data inputted again verification
t needs t needs
generated by the into the System?
further further
counting 21. The System is
verification verification
machine and able to print the
transmitted specified reports
through an and the audit trail
electronic without any loss
transmission of data during
media? generation of the
√
17. Does the system √ √ above-mentioned
output a Zero Note: This reports? √
√
City/Municipal particular Prints
√ Note: This
Canvass Report, requiremen specified
particular
which is printed t needs reports
requiremen
on election day further Audit Trail
t needs
prior to the verification
further
conduct of the
verification
actual canvass
operation, that
shows that all
totals for all the 22. Can the result of √ √
votes for all the the city/municipal Note: This
candidates and consolidation be particular

21
 requiremen provincial/district/ particular
stored in a data t needs national requiremen
storage device? further consolidation be t needs
verification stored in a data further
23. Does the system √ storage device? verification
consolidate According to respondents, it was only after the TWG and the DOST had
√
results from all conducted their separate tests and submitted their respective reports that the BAC,
Note: This
precincts in the on the basis of these reports formulated its comments/recommendations on the bids
particular
provincial/district/ of the consortium and TIM.
requiremen
national using
t needs
the data storage The BAC, in its Report dated April 21, 2003, recommended that the Phase II
further
device from project involving the acquisition of automated counting machines be awarded to
verification
different levels of MPEI. It said:
consolidation? After incisive analysis of the technical reports of the DOST and the Technical
√ Working Group for Phase II Automated Counting Machine, the BAC considers
24. Is the system
√ Note: This adaptability to advances in modern technology to ensure an effective and efficient
100% accurate?
particular method, as well as the security and integrity of the system.
requiremen
t needs The results of the evaluation conducted by the TWG and that of the DOST (14 April
further 2003 report), would show the apparent advantage of Mega-Pacific over the other
verification competitor, TIM.
25. Is the Program
able to detect √ The BAC further noted that both Mega-Pacific and TIM obtained some failed marks
previously √ Note: This in the technical evaluation. In general, the failed marks of Total Information
downloaded particular Management as enumerated above affect the counting machine itself which are
precinct results requiremen material in nature, constituting non-compliance to the RFP. On the other hand, the
and prevent t needs failed marks of Mega-Pacific are mere formalities on certain documentary
these from being further requirements which the BAC may waive as clearly indicated in the Invitation to Bid.
inputted again verification In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting
into the System? machine itself as stated earlier. These are requirements of the RFP and therefore the
26. The System is BAC cannot disregard the same.
able to print the
specified reports Mega-Pacific failed in 8 items however these are mostly on the software which can
and the audit trail be corrected by reprogramming the software and therefore can be readily corrected.
without any loss The BAC verbally inquired from DOST on the status of the retest of the counting
of data during machines of the TIM and was informed that the report will be forthcoming after the
generation of the holy week. The BAC was informed that the retest is on a different parameters theyre
abovementioned √ being two different machines being tested. One purposely to test if previously read
reports? √ √ ballots will be read again and the other for the other features such as two sided
Prints specified √ Note: This ballots.
reports particular
Audit Trail requiremen The said machine and the software therefore may not be considered the same
t needs machine and program as submitted in the Technical proposal and therefore may be
further considered an enhancement of the original proposal.
verification
Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive
Director Ronaldo T. Viloria of DOST is that the result of the test in the two counting
machines of TIM contains substantial errors that may lead to the failure of these
27. Can the results of √ √ machines based on the specific items of the RFP that DOST has to certify.
the Note: This

22
 OPENING OF FINANCIAL BIDS
The BAC on 15 April 2003, after notifying the concerned bidders opened the financial
bids in their presence and the results were as follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price of Php1,248,949,088.00
Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769 ACMs (Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272 ACMs (Mindanao
and NCR only)
Premises considered, it appears that the bid of Mega Pacific is the lowest calculated
responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends
that the Phase II project re Automated Counting Machine be awarded to Mega
Pacific eSolutions, Inc.[48]
The BAC, however, also stated on page 4 of its Report: Based on the 14 April
2003 report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total
Information Management Corporation) failed to meet some of the
requirements. Below is a comparative presentation of the requirements wherein
Mega-Pacific or TIM or both of them failed: x x x. What followed was a list of key
requirements, referring to technical requirements, and an indication of which of the
two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were to have
an accuracy rating of at least 99.9995 percent. The BAC Report indicates that
both Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the
Comelecs Request for Proposal (RFP). The RFP, on page 26, even states that the
ballot counting machines and ballot counting software must have an accuracy rating
of 99.9995% (not merely 99.995%) or better as certified by a reliable independent
testing agency.
When questioned on this matter during the Oral Argument, Commissioner
Borra tried to wash his hands by claiming that the required accuracy rating of
99.9995 percent had been set by a private sector group in tandem with Comelec. He
added that the Commission had merely adopted the accuracy rating as part of the
groups recommended bid requirements, which it had not bothered to amend even
after being advised by DOST that such standard was unachievable. This excuse,
however, does not in any way lessen Comelecs responsibility to adhere to its own
published bidding rules, as well as to see to it that the consortium indeed meets the
accuracy standard. Whichever accuracy rating is the right standard -- whether
99.995 or 99.9995 percent -- the fact remains that the machines of the so-called
consortium failed to even reach the lesser of the two. On this basis alone, it ought to
have been disqualified and its bid rejected outright.
At this point, the Court stresses that the essence of public bidding is violated by
the practice of requiring very high standards or unrealistic specifications that cannot
be met -- like the 99.9995 percent accuracy rating in this case -- only to water them
down after the bid has been award. Such scheme, which discourages the entry of
prospective bona fide bidders, is in fact a sure indication of fraud in the bidding,
designed to eliminate fair competition. Certainly, if no bidder meets the mandatory
requirements, standards or specifications, then no award should be made and a
failed bidding declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the consortium as
well as TIM failed to meet another key requirement -- for the counting machines
software program to be able to detect previously downloaded precinct results
and to prevent these from being entered again into the counting machine. This
same deficiency on the part of both bidders reappears on page 7 of the BAC Report,
as a result of the recurrence of their failure to meet the said key requirement.
That the ability to detect previously downloaded data at different canvassing or
consolidation levels is deemed of utmost importance can be seen from the fact that it
is repeated three times in the RFP. On page 30 thereof, we find the requirement that
the city/municipal canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being inputted again into the
system. Again, on page 32 of the RFP, we read that the provincial/district canvassing
system software must be able to detect previously downloaded city/municipal results
and prevent these from being inputted again into the system. And once more, on
page 35 of the RFP, we find the requirement that the national canvassing system
software must be able to detect previously downloaded provincial/district results and
prevent these from being inputted again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which
should have been a cause for the gravest concern. Come May 2004, unscrupulous
persons may take advantage of and exploit such deficiency by repeatedly
downloading and feeding into the computers results favorable to a particular
candidate or candidates. We are thus confronted with the grim prospect of
election fraud on a massive scale by means of just a few key strokes. The
marvels and woes of the electronic age!
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate
that the ACMs of both bidders were unable to print the audit trail without any loss
of data. In the case of MPC, the audit trail system was not yet incorporated into its
ACMs.
This particular deficiency is significant, not only to this bidding but to the cause
of free and credible elections. The purpose of requiring audit trails is to enable
Comelec to trace and verify the identities of the ACM operators responsible for data
entry and downloading, as well as the times when the various data were downloaded
into the canvassing system, in order to forestall fraud and to identify the perpetrators.
23
 Thus, the RFP on page 27 states that the ballot counting machines and ballot
counting software must print an audit trail of all machine operations for
documentation and verification purposes. Furthermore, the audit trail must be stored
on the internal storage device and be available on demand for future printing and
verifying. On pages 30-31, the RFP also requires that the city/municipal canvassing
system software be able to print an audit trail of the canvassing operations, including
therein such data as the date and time the canvassing program was started, the log-
in of the authorized users (the identity of the machine operators), the date and time
the canvass data were downloaded into the canvassing system, and so on and so
forth. On page 33 of the RFP, we find the same audit trail requirement with respect to
the provincial/district canvassing system software; and again on pages 35-36
thereof, the same audit trail requirement with respect to the national canvassing
system software.
That this requirement for printing audit trails is not to be lightly brushed aside by
the BAC or Comelec itself as a mere formality or technicality can be readily gleaned
from the provisions of Section 7 of RA 8436, which authorizes the Commission to
use an automated system for elections.
The said provision which respondents have quoted several times, provides that
ACMs are to possess certain features divided into two classes: those that the statute
itself considers mandatory and other features or capabilities that the law deems
optional. Among those considered mandatory are provisions for audit trails! Section
7 reads as follows: The System shall contain the following features: (a) use of
appropriate ballots; (b) stand-alone machine which can count votes and an
automated system which can consolidate the results immediately; (c) with
provisions for audit trails; (d) minimum human intervention; and (e) adequate
safeguard/security measures. (Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is
indeed mandatory, considering the wording of Section 7 of RA 8436. Neither can
Respondent Comelec deny that it has relied on the BAC Report, which indicates that
the machines or the software was deficient in that respect. And yet, the Commission
simply disregarded this shortcoming and awarded the Contract to private
respondent, thereby violating the very law it was supposed to implement.
C. Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection of previously
downloaded data, as well as provisions for audit trails, are mere shortcomings or
minor deficiencies in software or programming, which can be rectified. Perhaps
Comelec simply relied upon the BAC Report, which states on page 8 thereof
that Mega Pacific failed in 8 items[;] however these are mostly on the software which
can be corrected by re-programming x x x and therefore can be readily corrected.
The undersigned ponentes questions, some of which were addressed to
Commissioner Borra during the Oral Argument, remain unanswered to this day. First
of all, who made the determination that the eight fail marks of Mega Pacific were on
account of the software -- was it DOST or TWG? How can we be sure these failures
were not the results of machine defects? How was it determined that the software
could actually be re-programmed and thereby rectified? Did a qualified
technical expert read and analyze the source code [ 4 9 ] for the programs
and conclude that these could be saved and remedied? (Such determination cannot
be done by any other means save by the examination and analysis of the source
code.)
Who was this qualified technical expert? When did he carry out the study? Did
he prepare a written report on his findings? Or did the Comelec just make a wild
guess? It does not follow that all defects in software programs can be rectified, and
the programs saved. In the information technology sector, it is common knowledge
that there are many badly written programs, with significant programming errors
written into them; hence it does not make economic sense to try to correct the
programs; instead, programmers simply abandon them and just start from
scratch. Theres no telling if any of these programs is unrectifiable, unless a qualified
programmer reads the source code.
And if indeed a qualified expert reviewed the source code, did he also
determine how much work would be needed to rectify the programs? And how much
time and money would be spent for that effort? Who would carry out the work? After
the rectification process, who would ascertain and how would it be ascertained that
the programs have indeed been properly rectified, and that they would work properly
thereafter? And of course, the most important question to ask: could the rectification
be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec
simply took the word of the BAC as gospel truth, without even bothering to inquire
from DOST whether it was true that the deficiencies noted could possibly be
remedied by re-programming the software. Apparently, Comelec did not care about
the software, but focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by Commissioner
Borra during the Oral Argument that the software currently being used by Comelec
was merely the demo version, inasmuch as the final version that would actually be
used in the elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for testing
and deployment. It seems to the Court that Comelec is just keeping its fingers
crossed and hoping the final product would work. Is there a Plan B in case it does
not? Who knows? But all these software programs are part and parcel of the bidding
and the Contract awarded to the Consortium. Why is it that the machines are already
being brought in and paid for, when there is as yet no way of knowing if the final
version of the software would be able to run them properly, as well as canvass and
consolidate the results in the manner required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still
valid to this day: Garbage in, garbage out. No matter how powerful, advanced and
sophisticated the computers and the servers are, if the software being utilized is
defective or has been compromised, the results will be no better than garbage. And
to think that what is at stake here is the 2004 national elections -- the very basis of
our democratic life.
24
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certifications
issued by DOST declaring that some 285 counting machines had been tested and
had passed the acceptance testing conducted by the Department on October 8-18,
2003. Among those tested were some machines that had failed previous tests, but
had undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner and
by what standards or criteria the condition, performance and/or readiness of the
machines were re-evaluated and re-appraised and thereafter given the passing
mark. Apart from that fact, the remedial efforts of respondents were, not surprisingly,
apparently focused again on the machines -- the hardware. Nothing was said or
done about the software -- the deficiencies as to detection and prevention of
downloading and entering previously downloaded data, as well as the capability to
print an audit trail. No matter how many times the machines were tested and re-
tested, if nothing was done about the programming defects and deficiencies, the
same danger of massive electoral fraud remains. As anyone who has a modicum of
knowledge of computers would say, Thats elementary!
And only last December 5, 2003, an Inq7.net news report quoted the Comelec
chair as saying that the new automated poll system would be used nationwide in
May 2004, even as the software for the system remained unfinished. It also reported
that a certain Titus Manuel of the Philippine Computer Society, which was helping
Comelec test the hardware and software, said that the software for the counting still
had to be submitted on December 15, while the software for the canvassing was due
in early January.
Even as Comelec continues making payments for the ACMs, we keep asking
ourselves: who is going to ensure that the software would be tested and would work
properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all
machines (testing of every single unit) would not serve to eradicate the grave abuse
of discretion already committed by Comelec when it awarded the Contract on April
15, 2003, despite the obvious and admitted flaws in the bidding process, the failure
of the winning bidder to qualify, and the inability of the ACMs and the intended
software to meet the bid requirements and rules.
Comelecs Latest Assurances Are Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious violations of law and
gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required
respondents to inform it as to the number of ACMs delivered and paid for, as well as
the total payment made to date for the purchase thereof. They were likewise
instructed to submit a certification from the DOST attesting to the number of ACMs
tested, the number found to be defective; and whether the reprogrammed software
has been tested and found to have complied with the requirements under Republic
Act No. 8436.[50]
In its Partial Compliance and Manifestation dated December 29, 2003,
Comelec informed the Court that 1,991 ACMs had already been delivered to the
Commission as of that date. It further certified that it had already paid the supplier
the sum of P849,167,697.41, which corresponded to 1,973 ACM units that had
passed the acceptance testing procedures conducted by the MIRDC-DOST[51] and
which had therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the
Court the following:
The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3) types of
software, which are intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use.
Purchase of the First Type of Software Without Evaluation
In other words, the first type of software was to be developed solely for the
purpose of enabling the evaluation of the bidders technical bid. Comelec explained
thus: In addition to the presentation of the ACM hardware, the bidders were required
to develop a base software program that will enable the ACM to function
properly. Since the software program utilized during the evaluation of bids is not the
actual software program to be employed on election day, there being two (2) other
types of software program that will still have to be developed and thoroughly tested
prior to actual election day use, defects in the base software that can be readily
corrected by reprogramming are considered minor in nature, and may therefore be
waived.
In short, Comelec claims that it evaluated the bids and made the decision to
award the Contract to the winning bidder partly on the basis of the operation of the
ACMs running a base software. That software was therefore nothing but a sample or
demo software, which would not be the actual one that would be used on election
day. Keeping in mind that the Contract involves the acquisition of not just the ACMs
or the hardware, but also the software that would run them, it is now even clearer
that the Contract was awarded without Comelec having seen, much less evaluated,
the final product -- the software that would finally be utilized come election day. (Not
even the near-final product, for that matter).
What then was the point of conducting the bidding, when the software that was
the subject of the Contract was still to be created and could conceivably undergo
innumerable changes before being considered as being in final form? And that is not
all!
No Explanation for Lapses in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated Testing and Acceptance Procedures. As best as we can construe,
Comelec is claiming that this second type of software is also to be developed and
delivered by the supplier in connection with the testing and acceptance phase of the
acquisition process.The previous pleadings, though -- including the DOST reports
25
submitted to this Court -- have not heretofore mentioned any statement, allegation or
representation to the effect that a particular set of software was to be developed
and/or delivered by the supplier in connection with the testing and acceptance of
delivered ACMs.
What the records do show is that the imported ACMs were subjected to the
testing and acceptance process conducted by the DOST. Since the initial batch
delivered included a high percentage of machines that had failed the tests, Comelec
asked the DOST to conduct a 100 percent testing; that is, to test every single one of
the ACMs delivered. Among the machines tested on October 8 to 18, 2003, were
some units that had failed previous tests but had subsequently been re-tested and
had passed. To repeat, however, until now, there has never been any mention of a
second set or type of software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim,
Comelec in the same submission also professes (in response to the concerns
expressed by this Court) that the reprogrammed software has been tested and
found to have complied with the requirements of RA 8436. It reasoned
thus: Since the software program is an inherent element in the automated counting
system, the certification issued by the MIRDC-DOST that one thousand nine
hundred seventy-three (1,973) units passed the acceptance test procedures is an
official recognition by the MIRDC-DOST that the software component of the
automated election system, which has been reprogrammed to comply with the
provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committees ACM Testing and Acceptance Manual, has passed the
MIRDC-DOST tests.
The facts do not support this sweeping statement of Comelec. A scrutiny of the
MIRDC-DOST letter dated December 15, 2003, [52] which it relied upon, does not
justify its grand conclusion. For claritys sake, we quote in full the letter-certification,
as follows:
15 December 2003
HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
Dear Commissioner Borra:
We are pleased to submit 11 DOST Test Certifications representing 11 lots and
covering 158 units of automated counting machines (ACMs) that we have tested
from 02-12 December 2003.
To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
It should be noted that a total of 18 units have failed the test. Out of these 18 units,
only one (1) unit has failed the retest.
Thank you and we hope you will find everything in order.
Very truly yours,
ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee
Even a cursory glance at the foregoing letter shows that it is completely bereft
of anything that would remotely support Comelecs contention that the software
component of the automated election system x x x has been reprogrammed to
comply with RA 8436, and has passed the MIRDC-DOST tests. There is no mention
at all of any software reprogramming. If the MIRDC-DOST had indeed undertaken
the supposed reprogramming and the process turned out to be successful, that
agency would have proudly trumpeted its singular achievement.
How Comelec came to believe that such reprogramming had been undertaken
is unclear. In any event, the Commission is not forthright and candid with the factual
details. If reprogramming has been done, who performed it and when? What exactly
did the process involve? How can we be assured that it was properly
performed? Since the facts attendant to the alleged reprogramming are still
shrouded in mystery, the Court cannot give any weight to Comelecs bare allegations.
The fact that a total of 1,973 of the machines has ultimately passed the
MIRDC-DOST tests does not by itself serve as an endorsement of the soundness of
the software program, much less as a proof that it has been reprogrammed. In the
first place, nothing on record shows that the tests and re-tests conducted on the
machines were intended to address the serious deficiencies noted earlier. As a
matter of fact, the MIRDC-DOST letter does not even indicate what kinds of tests or
re-tests were conducted, their exact nature and scope, and the specific objectives
thereof.[53] The absence of relevant supporting documents, combined with the utter
vagueness of the letter, certainly fails to inspire belief or to justify the expansive
confidence displayed by Comelec. In any event, it goes without saying that remedial
measures such as the alleged reprogramming cannot in any way mitigate the grave
abuse of discretion already committed as early as April 15, 2003.
Rationale of Public Bidding Negated by the Third Type of Software
Respondent Comelec tries to assuage this Courts anxiety in these words: The
reprogrammed software that has already passed the requirements of Republic Act
No. 8436 during the MIRDC-DOST testing and acceptance procedures will require
further customization since the following additional elements, among other things,
will have to be considered before the final software can be used on election day: 1.
Final Certified List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot
Design and Security Features x x x 4. Encryption, digital certificates and digital
signatures x x x. The certified list of candidates for national elective positions will be
finalized on or before 23 January 2004 while the final list of projects of precincts will
be prepared also on the same date. Once all the above elements are incorporated in
the software program, the Test Certification Group created by the Ad Hoc Technical
Evaluation Committee will conduct meticulous testing of the final software before the
same can be used on election day. In addition to the testing to be conducted by said
Test Certification Group, the Comelec will conduct mock elections in selected areas
nationwide not only for purposes of public information but also to further test the final
election day program. Public respondent Comelec, therefore, requests that it be
given up to 16 February 2004 to comply with this requirement.
26
 The foregoing passage shows the imprudent approach adopted by Comelec in
the bidding and acquisition process. The Commission says that before the software
can be utilized on election day, it will require customization through addition of data --
like the list of candidates, project of precincts, and so on. And inasmuch as such
data will become available only in January 2004 anyway, there is therefore no
perceived need on Comelec part to rush the supplier into producing the final (or
near-final) version of the software before that time. In any case, Comelec argues that
the software needed for the electoral exercise can be continuously developed,
tested, adjusted and perfected, practically all the way up to Election Day, at the same
time that the Commission is undertaking all the other distinct and diverse activities
pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention to
the counting and canvassing software during the entire bidding process, which took
place in February-March 2003. Granted that the software was defective, could not
detect and prevent the re-use of previously downloaded data or produce the audit
trail -- aside from its other shortcomings -- nevertheless, all those deficiencies could
still be corrected down the road. At any rate, the software used for bidding purposes
would not be the same one that will be used on Election Day, so why pay any
attention to its defects? Or to the Comelecs own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale underlying
the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the
public policy on public biddings (1) by allowing MPC/MPEI to participate in the
bidding even though it was not qualified to do so; and (2) by eventually awarding the
Contract to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear
that the Commission further desecrated the law on public bidding by permitting the
winning bidder to change and alter the subject of the Contract (the software), in
effect allowing a substantive amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application of
pertinent rules, regulations and guidelines for public bidding for the purpose
of placing each bidder, actual or potential, on the same footing. The essence of
public bidding is, after all, an opportunity for fair competition, and a fair basis for the
precise comparison of bids.In common parlance, public bidding aims to level the
playing field. That means each bidder must bid under the same conditions; and be
subject to the same guidelines, requirements and limitations, so that the best offer or
lowest bid may be determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance
between the conditions under which bids are invited and those under which
proposals are submitted and approved; or, as in this case, the conditions under
which the bid is won and those under which the awarded Contract will be complied
with. The substantive amendment of the contract bidded out, without any public
bidding -- after the bidding process had been concluded -- is violative of the public
policy on public biddings, as well as the spirit and intent of RA 8436. The whole point
in going through the public bidding exercise was completely lost. The very rationale
of public bidding was totally subverted by the Commission.
From another perspective, the Comelec approach also fails to make
sense. Granted that, before election day, the software would still have to be
customized to each precinct, municipality, city, district, and so on, there still was
nothing at all to prevent Comelec from requiring prospective suppliers/bidders to
produce, at the very start of the bidding process, the next-to-final versions of the
software (the best software the suppliers had) -- pre-tested and ready to be
customized to the final list of candidates and project of precincts, among others, and
ready to be deployed thereafter. The satisfaction of such requirement would probably
have provided far better bases for evaluation and selection, as between suppliers,
than the so-called demo software.
Respondents contend that the bidding suppliers counting machines were
previously used in at least one political exercise with no less than 20 million voters. If
so, it stands to reason that the software used in that past electoral exercise would
probably still be available and, in all likelihood, could have been adopted for use in
this instance. Paying for machines and software of that category (already tried and
proven in actual elections and ready to be adopted for use) would definitely make
more sense than paying the same hundreds of millions of pesos for demo software
and empty promises of usable programs in the future.
But there is still another gut-level reason why the approach taken by Comelec
is reprehensible. It rides on the perilous assumption that nothing would go wrong;
and that, come Election Day, the Commission and the supplier would have
developed, adjusted and re-programmed the software to the point where the
automated system could function as envisioned. But what if such optimistic
projection does not materialize? What if, despite all their herculean efforts, the
software now being hurriedly developed and tested for the automated system
performs dismally and inaccurately or, worse, is hacked and/or manipulated? [54] What
then will we do with all the machines and defective software already paid for in the
amount of P849 millions of our tax money? Even more important, what will happen
to our country in case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until February 16,
2004 to be able to submit a certification relative to the additional elements of the
software that will be customized, because for us to do so would unnecessarily delay
the resolution of this case and would just give the poll body an unwarranted excuse
to postpone the 2004 elections. On the other hand, because such certification will
not cure the gravely abusive actions complained of by petitioners, it will be utterly
useless.
Is this Court being overly pessimistic and perhaps even engaging in
speculation? Hardly. Rather, the Court holds that Comelec should not have gambled
on the unrealistic optimism that the suppliers software development efforts would
turn out well. The Commission should have adopted a much more prudent and
judicious approach to ensure the delivery of tried and tested software, and readied
alternative courses of action in case of failure. Considering that the nation’s future is
at stake here, it should have done no less.
Epilogue
27
 Once again, the Court finds itself at the crossroads of our nation’s history. At
stake in this controversy is not just the business of a computer supplier, or a
questionable proclamation by Comelec of one or more public officials. Neither is it
about whether this country should switch from the manual to the automated system
of counting and canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently its legal mandate
to implement the transition from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated
at the start of this Decision, Comelec has not merely gravely abused its discretion in
awarding the Contract for the automation of the counting and canvassing of the
ballots. It has also put at grave risk the holding of credible and peaceful elections by
shoddily accepting electronic hardware and software that admittedly failed to pass
legally mandated technical requirements. Inadequate as they are, the remedies it
proffers post facto do not cure the grave abuse of discretion it already committed (1)
on April 15, 2003, when it illegally made the award; and (2) sometime in May 2003
when it executed the Contract for the purchase of defective machines and non-
existent software from a non-eligible bidder.
process, it cannot accept just any system shoved into its bosom through improper
and illegal methods. As the saying goes, the end never justifies the
means. Penumbral contracting will not produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby
declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for
Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared null and
void is the subject Contract executed between Comelec and Mega Pacific eSolutions
(MPEI).[55] Comelec is further ORDERED to refrain from implementing any other
contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which
shall determine the criminal liability, if any, of the public officials (and conspiring
private individuals, if any) involved in the subject Resolution and Contract. Let the
Office of the Solicitor General also take measures to protect the government and
vindicate public interest from the ill effects of the illegal disbursements of public
funds made by reason of the void Resolution and Contract.
SO ORDERED.

For these reasons, the Court finds it totally unacceptable and unconscionable
to place its imprimatur on this void and illegal transaction that seriously endangers
the breakdown of our electoral system. For this Court to cop-out and to close its eyes
to these illegal transactions, while convenient, would be to abandon its constitutional
duty of safeguarding public interest.

As a necessary consequence of such nullity and illegality, the purchase of the

machines and all appurtenances thereto including the still-to-be-produced (or in
Comelecs words, to be reprogrammed) software, as well as all the payments made
therefor, have no basis whatsoever in law. The public funds expended pursuant to
the void Resolution and Contract must therefore be recovered from the payees
and/or from the persons who made possible the illegal disbursements, without
prejudice to possible criminal prosecutions against them.

Furthermore, Comelec and its officials concerned must bear full responsibility
for the failed bidding and award, and held accountable for the electoral mess
wrought by their grave abuse of discretion in the performance of their functions. The
State, of course, is not bound by the mistakes and illegalities of its agents and
servants.

True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must first have a diligent and competent electoral
agency that can properly and prudently implement a well-conceived automated
election system.

At bottom, before the country can hope to have a speedy and fraud-free
automated election, it must first be able to procure the proper computerized
hardware and software legally, based on a transparent and valid system of public
bidding. As in any democratic system, the ultimate goal of automating elections must
be achieved by a legal, valid and above-board process of acquiring the necessary
tools and skills therefor. Though the Philippines needs an automated electoral

28
 [G.R. No. 125532. July 10, 1998]
SECRETARY TEOFISTO GUINGONA, JR.; STATE PROSECUTORS JUDE
ROMANO, LEAH ARMAMENTO, petitioners, vs. COURT OF APPEALS
and RODOLFO PINEDA, respondents.
DECISION
PANGANIBAN, J.:
This case is an offshoot of the investigation conducted by the government in
the last quarter of 1995, which delved into the alleged participation of national and
local officials in jueteng and other forms of illegal gambling. Although the Court of
Appeals upheld the admission into the Witness Protection Program of Potenciano A.
Roque, who claimed personal knowledge of such gambling activities, the secretary
of justice nonetheless challenges the side opinion of the appellate court that the
testimony of the witness must, as a condition precedent to his admission into said
Program, be shown to be capable of substantial corroboration in its material
points. The justice secretary claims that such corroboration need not be
demonstrated prior to or simultaneous with the witness admission into the Program,
as long as such requirement can be demonstrated when he actually testifies in
court. However, inasmuch as Roque has already been admitted into the Program
and has actually finished testifying, the issue presented by petitioners has become
moot. Thus, any judgment that this Court may render on the instant petition would be
merely an academic disquisition on a hypothetical problem. Until it can be shown
that an actual controversy exists, courts have no jurisdiction to render a binding
decision.

The Case
This is a petition for review on certiorari to partially set aside the June 28, 1996
Decision of the Court of Appeals,[1] which disposed as follows:[2]
WHEREFORE, premises considered, the petition is hereby DISMISSED for want of
merit, and the injunction issued against respondent judges from hearing the criminal
actions against petitioner is hereby LIFTED.
SO ORDERED.

The Court of Appeals upheld the justice secretarys denial on January 11, 1996
of private respondents Petition for Reconsideration of Admittance of Potenciano A.
Roque to the Witness Protection Program.

Although Respondent Court ruled in favor of the government, herein petitioners

nonetheless assail the following portion of the said Decision:
x x x From the explicit terms of the statute, it is at once apparent that the presence of
such corroborative evidence is sine qua non to a witness admission into the
Program. Being in the nature of a condition precedent [to] his admission into the
Program, the existence of such corroborative evidence must be shown at the time
his application for admission is being evaluated.

The Antecedent Facts

Petitioners relate the antecedent facts of this case as follows:[3]

29
Sometime in the last quarter of 1995, the National Bureau of Investigation (NBI)
conducted an investigation on the alleged participation and involvement of national
and local government officials in jueteng and other forms of illegal gambling.
The case was also the subject of a legislative inquiry/investigation by both the
Senate and the House of Representatives.
In November 1995, one Potenciano Roque, claiming to be an eyewitness to the
networking of xxx national and local politicians and gambling lords, sought admission
into the Governments Witness Protection, Security and Benefit Program. Allegedly,
he gained first-hand information in his capacity as Chairman of the Task Force Anti-
Gambling (TFAG) during the term of former President Corazon C. Aquino until his
resignation in 1989. He also revealed that he and members of his family were in
danger of being liquidated, facing as he did the formidable world of corruption with a
well-entrenched hold on Philippine social, political and economic systems.
After a thorough evaluation of his qualifications, convinced of his compliance with the
requirements of Republic Act No. 6981, otherwise known as the Witness Protection,
Security and Benefit Act, the Department of Justice admitted Roque to the program,
providing him a monthly allowance, temporary shelter and personal and security
protection during witness duty.
On November 30, 1995, Roque executed a sworn statement before NBI Agents Sixto
M. Burgos, Jr. and Nelson M. Bartolome, alleging that during his stint as Chairman of
the Task Force Anti-Gambling (TFAG), several gambling lords, including private
respondent Rodolfo Pineda, and certain politicians offered him money and other
valuable considerations, which he accepted, upon his agreement to cease
conducting raids on their respective gambling operations (Annex B).
On the basis of Roques sworn statement, the sworn statement and supplemental
affidavit of one Angelito H. Sanchez, and the sworn statement of Gen. Lorenzo
Mateo (Annexes C, D and E), then NBI Director Mariano M. Mison forwarded the
result of their investigation on the jueteng scam to the Department of Justice (DOJ),
recommending the filing of the following charges against Pineda and other persons x
x x.
xxxxxxxxx
The DOJ Task Force on Illegal Gambling (composed of the petitioner-prosecutors),
created by petitioner Secretary Teofisto Guingona on November 24, 1995 (Annex F),
conducted a preliminary investigation of the case and subpoenaed all the
respondents in I.S. No. 95-774, therein requiring them to submit their counter-
affidavits by December 22, 1995.
On December 21, 1995, Roque executed a supplemental sworn statement relative to
I.S. No. 95-774, clarifying some of his statements in his first affidavit (Annex
G). Consequently, the December 22, 1995 setting was cancelled and reset to
January 8, 1996 to give Pineda and other respondents time to refute the charges
contained in the supplemental sworn statement.
On January 5, 1996, Pineda filed a Petition for Reconsideration of Admittance of
Potenciano A. Roque to the Witness Protection Program, which was denied by
petitioner Secretary in a letter-reply dated January 11, 1996 (Annexes H and I). On
January 23, 1996, Pineda filed a Petition for Certiorari, Prohibition and Mandamus
with Application for Temporary Restraining Order and Preliminary Injunction with the
respondent Court of Appeals.
xxxxxxxxx
In the meantime, petitioner-prosecutors proceeded with their preliminary
investigation, and on February 2, 1996, they issued a resolution finding probable
cause to charge private respondent Pineda with several offenses (Annex K). On
February 5, 1996, three (3) Informations for corruption of public officials were filed
against him in the Manila and Pasig City Trial Courts (Annexes L, M and N). He was
subsequently arraigned on February 28, 1996 in the Regional Trial Court, Branch 7
of the City of Manila presided by Judge Enrico Lanzanes, and on March 14, 1996 in
the Regional Trial Court, Branch 168, of Pasig City, presided by Judge Benjamin
Pelayo.
On March 19, 1996, the Court of Appeals came up with a writ of preliminary
injunction enjoining both trial courts from hearing the criminal actions in the
meantime.
The Ruling of the Court of Appeals
In its Decision, Respondent Court addressed mainly the issue of whether the
secretary of justice acted in excess of his jurisdiction (a) in admitting Petitioner
Roque into the Program and (b) in excluding him from the Informations filed against
private respondent. Private respondent contended that Roques admission was illegal
on two grounds: first, his testimony could not be substantially corroborated in its
material points; and second, he appeared to be the most guilty or at least more guilty
than private respondent, insofar as the crimes charged in the Informations were
concerned.
Respondent Court also ruled that RA 6981 contemplates two kinds of
witnesses: (a) a witness who has perceived or has knowledge of, or information on,
the commission of a crime under Section 3; and (b) a particeps criminis or a
participant in the crime under Section 10.
Based on his sworn statements, Roque participated in the commission of the
crimes imputed to private respondent (corruption of public officials) by accepting
bribe money.Necessarily, his admission to the Program fell under Section 10, which
requires that he should not appear to be the most guilty of the imputed
crimes. Respondent Court found that private respondent sought to bribe him several
times to prevent him from conducting raids on private respondents gambling
operations. Such passive participation in the crimes did not make him more guilty
than private respondent.
On the first issue, Respondent Court initially ruled that, by express provision of
Sections 3 and 10, the requirement of corroboration is a condition precedent to
admission into the Program. A contrary interpretation would only sanction the
squandering of the various benefits of the Program on one who might later be
adjudged disqualified from admission for lack of evidence to corroborate his
testimony.
30
 However, in the same breath, Respondent Court upheld herein petitioners
alternative position that substantial corroboration was nevertheless actually provided
by Angelito Sanchez and retired Gen. Lorenzo M. Mateos testimonies. Hence, it
disposed in favor of the government.
Subsequently, this petition was filed.[4]
The Issue
The lone issue raised by this petition is worded as follows:
Whether or not a witness testimony requires prior or simultaneous corroboration at
the time he is admitted into the witness protection, security and benefit program.[5]
As noted earlier, this petition is unusual and unique. Despite ruling in their
favor, Respondent Court is assailed by petitioners for opining that admission to the
Program requires prior or simultaneous corroboration of the material points in the
witness testimony.
Respondent Court and private respondent are of the opinion that Sections 3 (b)
& 10 (d) of RA 6981 expressly require that corroboration must already exist at the
time of the witness application as a prerequisite to admission into the Program. RA
6981 pertinently provides:
Sec. 10. State Witness. Any person who has participated in the commission of a
crime and desires to be a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be admitted into the Program
whenever the following are present:
xxxxxxxxx
(d) his testimony can be substantially corroborated on its material points;.
On the other hand, petitioners contend that said provisions merely require that
the testimony of the state witness seeking admission into the Program can be
substantially corroborated or is capable of corroboration. So long as corroboration
can be obtained when he testifies in court, he satisfies the requirement that his
testimony can besubstantially corroborated on its material points.
The Courts Ruling
The petition must fail, because the facts and the issue raised by petitioners do
not warrant the exercise of judicial power.
No Actual Controversy
Without going into the merits of the case, the Court finds the petition
fundamentally defective. The Constitution provides that judicial power includes the
duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable.[6] According to Fr. Joaquin Bernas, a noted
constitutionalist, courts are mandated to settle disputes between real conflicting
parties through the application of the law.[7] Judicial review, which is merely an aspect
of judicial power, demands the following: (1) there must be an actual case calling for
the exercise of judicial power; (2) the question must be ripe for adjudication; [8] and (3)
the person challenging must have standing; that is, he has personal and substantial
interest in the case, such that he has sustained or will sustain direct injury.[9]
The first requisite is that there must be before a court an actual case calling for
the exercise of judicial power. Courts have no authority to pass upon issues through
advisory opinions or to resolve hypothetical or feigned problems[10] or friendly suits
collusively arranged between parties without real adverse interests.[11] Courts do not
sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging.[12] As a condition precedent to the exercise of judicial
power, an actual controversy between litigants must first exist.[13]
An actual case or controversy exists when there is a conflict of legal rights or
an assertion of opposite legal claims, which can be resolved on the basis of existing
law and jurisprudence. A justiciable controversy is distinguished from a hypothetical
or abstract difference or dispute, in that the former involves a definite and concrete
dispute touching on the legal relations of parties having adverse legal interests. A
justiciable controversy admits of specific relief through a decree that is conclusive in
character, whereas an opinion only advises what the law would be upon a
hypothetical state of facts.[14]
Thus, no actual controversy was found in Abbas vs. Commission on
Elections[15] regarding the provision in the Organic Act, which mandates that should
there be any conflict between national law and Islamic Law, the Shariah courts
should apply the former. In that case, the petitioner maintained that since the Islamic
Law (Shariah) was derived from the Koran, which makes it part of divine law,
the Shariah may not be subjected to any man-made national law. This Court
dismissed petitioners argument because, as enshrined in the Constitution, judicial
power includes the duty to settle actual controversies involving rights which are
legally demandable and enforceable. No actual controversy between real litigants
existed, because no conflicting claims involving the application of national law were
presented. This being so, the Supreme Court refused to rule on a merely perceived
potential conflict between the provisions of the Muslim Code and those of the
national law.
In contrast, the Court held in Sabello vs. Department of Education, Culture and
Sports[16] that there was a justiciable controversy where the issue involved was
whether petitioner -- after he was given an absolute pardon -- merited reappointment
to the position he had held prior to his conviction, that of Elementary Principal I. The
Court said that such dispute was not hypothetical or abstract, for there was a definite
and concrete controversy touching on the legal relations of parties and admitting of
specific relief through a court decree that was conclusive in character. That case did
not call for mere opinion or advice, but for affirmative relief.
Closely related to the requirement of an actual case, Bernas continues, is the
second requirement that the question is ripe for adjudication. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. Thus, in PACU vs. Secretary of Education,[17] the Court
declined to pass judgment on the question of the validity of Section 3 of Act No.
2706, which provided that before a private school may be opened to the public, it
must first obtain a permit from the secretary of education, because all the petitioning
schools had permits to operate and were actually operating, and none of them
claimed that the secretary had threatened to revoke their permit.
In Tan vs. Macapagal,[18] the Court said that Petitioner Gonzales had the good
sense to wait until after the enactment of the statute [Rep. Act No. 4913 (1967)]
31
requiring the submission to the electorate of certain proposed amendments to the
Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body (1967)]
before he could file his suit. It was only when this condition was met that the matter
became ripe for adjudication; prior to that stage, the judiciary had to keep its hands
off.
The doctrine of separation of powers calls for each branch of government to be
left alone to discharge its duties as it sees fit. Being one such branch, the judiciary,
Justice Laurel asserted, will neither direct nor restrain executive [or legislative action]
x x x.[19] The legislative and the executive branches are not allowed to seek its advice
on what to do or not to do; thus, judicial inquiry has to be postponed in the
meantime. Before a court may enter the picture, a prerequisite is that something has
been accomplished or performed by either branch. Then may it pass on the validity
of what has been done but, then again, only when x x x properly challenged in an
appropriate legal proceeding.[20]
In the case at bar, it is at once apparent that petitioners are not requesting that
this Court reverse the ruling of the appellate court and disallow the admission in
evidence of Respondent Roques testimony, inasmuch as the assailed Decision does
not appear to be in conflict with any of their present claims. Petitioners filed this suit
out of fear that the assailed Decision would frustrate the purpose of said law, which
is to encourage witnesses to come out and testify. But their apprehension is neither
justified nor exemplified by this particular case. A mere apprehension does not give
rise to a justiciable controversy.
After finding no grave abuse of discretion on the part of the government
prosecutors, Respondent Court allowed the admission of Roque into the Program. In
fact, Roque had already testified in court against the private respondent. Thus, the
propriety of Roques admission into the Program is already a moot and academic
issue that clearly does not warrant judicial review.
Manifestly, this petition involves neither any right that was violated nor any
claims that conflict. In fact, no affirmative relief is being sought in this case. The
Court concurs with the opinion of counsel for private respondent that this action is a
purely academic exercise, which has no relevance to the criminal cases against
Respondent Pineda. After the assailed Decision had been rendered, trial in those
cases proceeded in earnest, and Roque testified in all of them. Said counsel filed his
Memorandum only to satisfy his academic interest on how the State machinery will
deal with witnesses who are admittedly guilty of the crimes but are discharged to
testify against their co-accused.[21]
Petitioners failed not only to present an actual controversy, but also to show a
case ripe for adjudication. Hence, any resolution that this Court might make in this
case would constitute an attempt at abstraction that can only lead to barren legal
dialectics and sterile conclusions unrelated to actualities.[22]
An Executive Function
In the present petition, the government is in effect asking this Court to render
an advisory opinion on what the government prosecutors should do when, how and
whom to grant or to deny admission into the Program. To accede to it is tantamount
to an incursion into the functions of the executive department. From their arguments
stated above, both sides have obviously missed this crucial point, which is succinctly
stated in Webb vs. De Leon:[23]
It is urged that they [the provisions of RA 6918] constitute xxx an intrusion into
judicial prerogative for it is only the court which has the power under the Rules on
Criminal Procedure to discharge an accused as a state witness. The argument is
based on Section 9, Rule 119 which gives the court the prerogative to approve the
discharge of an accused to be a state witness.Petitioners argument lacks appeal for
it lies on the faulty assumption that the decision whom to prosecute is a judicial
function, the sole prerogative of courts and beyond executive and legislative
interference. In truth, the prosecution of crimes appertains to the executive
department of government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretionthe discretion of whether, what and whom
to charge, the exercise of which depends on a smorgasbord of factors which are
best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. 6981 vesting in the Department of Justice
the power to determine who can qualify as a witness in the program and who shall
be granted immunity from prosecution.Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be a state witness is an inherent
judicial prerogative. Under this provision, the court is given the power to discharge a
state witness only because it has already acquired jurisdiction over the crime and the
accused. The discharge of an accused is part of the exercise of jurisdiction but is not
a recognition of an inherent judicial function. Moreover, the Rules of Court have
never been interpreted to be beyond change by legislation designed to improve the
administration of our justice system. [Emphasis ours]
Simply stated, the decision on whether to prosecute and whom to indict is
executive in character. Only when an information, charging two or more persons with
a certain offense, has already been filed in court will Rule 119, Section 9 of the Rules
of Court, come into play, viz.:
SEC. 9. Discharge of one of several defendants to be witness for the
prosecution.When two or more persons are charged with the commission of a certain
offense, the competent court, at any time before they have entered upon their
defense, may direct one or more of them to be discharged with the latters consent
that he or they may be witnesses for the government when in the judgment of the
court:
(a) There is absolute necessity for the testimony of the defendant whose discharge is
requested;
(b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said defendant;
(c) The testimony of said defendant can be substantially corroborated in its material
points;
(d) Said defendant does not appear to be the most guilty;
(e) Said defendant has not at any time been convicted of any offense involving moral
turpitude.
In the present case, Roque was not one of those accused in the Informations filed by
the government prosecutors. Rule 119, Section 9, is therefore clearly not applicable.
32
 This Court should then leave to the executive branch the decision on how best
A resort to the progenitors of RA 6981 will yield the same result. Although to administer the Witness Protection Program. Unless an actual controversy arises,
Presidential Decree 1731 and National Emergency Memorandum Order No. 26 state we should not jump the gun and unnecessarily intervene in this executive function.
only whenimmunity from suit attaches to a witness, they do not specify who are
qualified for admission into the Program. PD 1731, otherwise known as a law
Providing for Rewards and Incentives to Government Witnesses and Informants and Closer Scrutiny of the Assailed Decision
for Other Purposes provides: Finally, an accurate reading of the assailed Decision will further enlighten
SEC. 4. Any such informants or witnesses who shall testify, or provide vital petitioners as to its true message. Respondent Court did sustain Roques admission
information, regarding the existence or activity of a group involved in the commission into the Program -- even as it held that the first contention of petitioners was
of crimes against national security or public order, or of an organized/syndicated untenable -- based on the latters alternative argument that Roques testimony was
crime or crime group, and/or the culpability of individual members thereof in sufficiently corroborated by that of General Mateo. While Respondent Court insisted
accordance with this Decree shall, upon recommendation of the state prosecutor, that corroboration must exist prior to or simultaneous with Roques admission into the
fiscal or military lawyer, as approved by the Secretary of National Defense or the Program, it sanctioned subsequent compliance to cure this defect. The reason for
Secretary of Justice, as the case may be, be immune from criminal prosecution for this is found in the penultimate paragraph of the Decision, in which Respondent
his participation or involvement in any such criminal activity which is the subject of Court categorically stated that it found no manifest abuse of discretion in the
the investigation or prosecution, in addition to the benefits under Sec. 2 petitioners action. There is no quarrel with this point. Until a more opportune
hereof: Provided, that, immunity from criminal prosecution shall, in the case of a occasion involving a concrete violation of RA 6981 arises, the Court has no
witness offering to testify, attach only upon his actually testifying in court in jurisdiction to rule on the issue raised by petitioners.
accordance with his undertaking as accepted by the state prosecutor, fiscal, or
military lawyer: Provided, further, that the following conditions are complied with: WHEREFORE, the petition is hereby DENIED.
xxxxxxxxx
c. That such testimony or information can be substantially corroborated in its material SO ORDERED.
points;
The same tenor was adopted in National Emergency Memorandum Order No.
26 signed by former President Corazon C. Aquino, Section 5(c) of which provides:
c. Immunity from Criminal Prosecution.This applies to the witness participation or
involvement in the criminal case in which his testimony is necessary and may be
availed of only upon his actually testifying in court in accordance with his
undertaking, and provided that:
xxxxxxxxx
(3) Such testimony or information can be substantially corroborated in its material
points;
One may validly infer from the foregoing that the government prosecutor is
afforded much leeway in choosing whom to admit into the Program. Such inference
is in harmony with the basic principle that this is an executive function.

RA 6981 is a much needed penal reform law that could help the government in
curbing crime by providing an antidote, as it were, to the usual reluctance of
witnesses to testify. The Department of Justice has clearly explained the rationale for
said law:[24]

Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear
and testify in the investigation/prosecution of criminal complaints/cases. Because of
such refusal, criminal complaints/cases have been dismissed for insufficiency and/or
lack of evidence. For a more effective administration of criminal justice, there was a
necessity to pass a law protecting witnesses and granting them certain rights and
benefits to ensure their appearance in investigative bodies/courts.

33
 [G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the
Philippine Senate and as taxpayers, petitioners, vs. EDGARDO
ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI,
HEHERSON ALVAREZ, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted
by the membership thereto of the vast majority of countries has revolutionized
international business and economic relations amongst states. It has irreversibly
propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the third-
millennium buzz words, are ushering in a new borderless world of business by
sweeping away as mere historical relics the heretofore traditional modes of
promoting and protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency controls.Finding
market niches and becoming the best in specific industries in a market-driven and
export-oriented global scenario are replacing age-old beggar-thy-neighbor policies
that unilaterally protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic
economic growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second
World War, plans for the establishment of three multilateral institutions -- inspired by
that grand political body, the United Nations -- were discussed at Dumbarton Oaks
and Bretton Woods. The first was the World Bank (WB) which was to address the
rehabilitation and reconstruction of war-ravaged and later developing countries;
the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to
foster order and predictability in world trade and to minimize unilateral protectionist
policies that invite challenge, even retaliation, from other states. However, for a
variety of reasons, including its non-ratification by the United States, the ITO, unlike
the IMF and WB, never took off. What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave
birth to that administering body -- the World Trade Organization -- with the signing of
the Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by its
members.[1]

34
 Like many other developing countries, the Philippines joined WTO as a
founding member with the goal, as articulated by President Fidel V. Ramos in two
letters to the Senate (infra), of improving Philippine access to foreign markets,
especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products. The President also saw in the WTO
the opening of new opportunities for the services sector x x x, (the reduction of) costs
and uncertainty associated with exporting x x x, and (the attraction of) more
investments into the country. Although the Chief Executive did not expressly mention
it in his letter, the Philippines - - and this is of special interest to the legal profession -
- will benefit from the WTO system of dispute settlement by judicial adjudication
through the independent WTO settlement bodies called (1) Dispute Settlement
Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly
through negotiations where solutions were arrived at frequently on the basis of
relative bargaining strengths, and where naturally, weak and underdeveloped
countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-countries on the same footing as Filipinos and local products
and (2) that the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court, the instant petition before this Court assails the
WTO Agreement for violating the mandate of the 1987 Constitution to develop a self-
reliant and independent national economy effectively controlled by Filipinos x x x (to)
give preference to qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation
in worldwide trade liberalization and economic globalization? Does it prescribe
Philippine integration into a global economy that is liberalized, deregulated and
privatized? These are the main questions raised in this petition for certiorari,
prohibition and mandamusunder Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in
the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of
its implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various executive
offices concerned therewith. This concurrence is embodied in Senate Resolution No.
97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing
the Government of the Republic of the Philippines, signed in Marrakesh, Morocco,
the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement
in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter
dated August 11, 1994 from the President of the Philippines, [3] stating among others
that the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another
letter from the President of the Philippines[4] likewise dated August 11, 1994, which
stated among others that the Uruguay Round Final Act, the Agreement Establishing
the World Trade Organization, the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of
the immediate adoption of P.S. 1083, a resolution entitled Concurring in the
Ratification of the Agreement Establishing the World Trade Organization.[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97
which Resolved, as it is hereby resolved, that the Senate concur, as it hereby
concurs, in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization.[6] The text of the WTO Agreement is
written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements and associated
legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto
and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General
on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
35
ANNEX 2
Understanding on Rules and Procedures Governing the
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed [7] the
Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic
of the Philippines, after having seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do
hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines
is composed of the Agreement Proper and the associated legal instruments included
in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not
only the WTO Agreement (and its integral annexes aforementioned) but also (1) the
Ministerial Declarations and Decisions and (2) the Understanding on Commitments
in Financial Services. In his Memorandum dated May 13, 1996,[8] the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and
decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After careful deliberation
on respondents comment and petitioners reply thereto, the Court resolved on
December 12, 1995, to give due course to the petition, and the parties thereafter
filed their respective memoranda. The Court also requested the Honorable Lilia R.
Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as Bautista Paper, [9] for brevity,
(1) providing a historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the
case submitted for resolution. In a Compliance dated September 16, 1996, the
Solicitor General submitted a printed copy of the 36-volume Uruguay Round of
Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996,
he listed the various bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty. Petitioners, on the other hand,
submitted their Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues
as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Article II, and Secs. 10
and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents
synthesized the several issues raised by petitioners into the following:
1. Whether or not the provisions of the Agreement Establishing the World
Trade Organization and the Agreements and Associated Legal Instruments included
in Annexes one (1), two (2) and three (3) of that agreement cited by petitioners
directly contravene or undermine the letter, spirit and intent of Section 19, Article II
and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.
36
4. Whether or not the concurrence of the Senate in the ratification by the President of
the Philippines of the Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General has effectively ignored three, namely: (1) whether
the petition presents a political question or is otherwise not justiciable; (2) whether
petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique
Coseteng) are estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when they voted for
concurrence in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case
-- was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents favor, will not cause the
petitions dismissal as there are petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues
raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did
not question the locus standi of petitioners. Hence, they are also deemed to have
waived the benefit of such issue. They probably realized that grave constitutional
issues, expenditures of public funds and serious international commitments of the
nation are involved here, and that transcendental public interest requires that the
substantive issues be met head on and decided on the merits, rather than skirted or
deflected by procedural matters To recapitulate, the issues that will be ruled upon
shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION
INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE
ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10
AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES
LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE
POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH
THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL
SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld.[12] Once a controversy as to the application or interpretation of
a constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by constitutional mandate to decide.
[13]
The jurisdiction of this Court to adjudicate the matters [14] raised in the petition is
clearly set out in the 1987 Constitution,[15] as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law.[16] As
explained by former Chief Justice Roberto Concepcion,[17] the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as
to constitute an abuse of discretion amounting to excess of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases, [18] it will not
shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department of
the government.
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at
all in holding that this petition should be given due course and the vital questions
raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition and mandamus are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the Senate in
enlisting the country into the WTO, or pass upon the merits of trade liberalization as
a policy espoused by said international body. Neither will it rule on the propriety of
the governments economic policy of reducing/removing tariffs, taxes, subsidies,
37
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise
its constitutional duty to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic nationalism are violated by the so-called parity provisions and
national treatment clauses scattered in various parts not only of the WTO Agreement
and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article
II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by
the following WTO provisions quoted in their memorandum:[19]
a) In the area of investment measures related to trade in goods (TRIMS, for
brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no
Member shall apply any TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of
general elimination of quantitative restrictions provided for in paragraph
I of Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol.
27, Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain
an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or
from any domestic source, whether specified in terms of particular
products, in terms of volume or value of products, or in terms of
proportion of volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited
to an amount related to the volume or value of local products that it
exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or enforceable under domestic
laws or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the
local production that it exports;
(b) the importation by an enterprise of products used in or related to its
local production by restricting its access to foreign exchange inflows
attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular
products, in terms of volume or value of products, or in terms of a
preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. the provisions of this paragraph shall not prevent the application
of differential internal transportation charges which are based exclusively on the
economic operation of the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and
Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round,
Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection
of intellectual property...(par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
38
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions
and qualifications set out therein, each Member shall accord to
services and service suppliers of any other Member, in respect of all
measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service
suppliers.
2. A Member may meet the requirement of paragraph I by according to
services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to
be less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services
or service suppliers of any other Member. (Article XVII, General
Agreement on Trade in Services, Vol. 28, Uruguay Round Legal
Instruments, p.22610 emphasis supplied).
It is petitioners position that the foregoing national treatment and parity
provisions of the WTO Agreement place nationals and products of member countries
on the same footing as Filipinos and local products, in contravention of the Filipino
First policy of the Constitution. They allegedly render meaningless the phrase
effectively controlled by Filipinos. The constitutional conflict becomes more manifest
when viewed in the context of the clear duty imposed on the Philippines as a WTO
member to ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed agreements.[20] Petitioners
further argue that these provisions contravene constitutional limitations on the role
exports play in national development and negate the preferential treatment accorded
to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that
such Charter provisions are not self-executing and merely set out general policies;
(2) that these nationalistic portions of the Constitution invoked by petitioners should
not be read in isolation but should be related to other relevant provisions of Art. XII,
particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do
not conflict with the Constitution; and (4) that the WTO Agreement contains sufficient
provisions to protect developing countries like the Philippines from the harshness of
sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and
state policies. The counterpart of this article in the 1935 Constitution [21] is called the
basic political creed of the nation by Dean Vicente Sinco.[22] These principles in
Article II are not intended to be self-executing principles ready for enforcement
through the courts.[23]They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its enactment of
laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato,[24] the
principles and state policies enumerated in Article II and some sections of Article XII
are not self-executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional rights
but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional
principles need legislative enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it
to state also that these are merely statements of principles and policies. As such,
they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p.
2).
The reasons for denying a cause of action to an alleged infringement of broad
constitutional principles are sourced from basic considerations of due process and
the lack of judicial authority to wade into the uncharted ocean of social and economic
policy making. Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa
vs. Factoran, Jr.,[26] explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the second paragraph of
Section 1 of Article VIII of the Constitution which reads:
Section 1. x x x
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
39
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. (Emphases supplied)
When substantive standards as general as the right to a balanced and healthy
ecology and the right to health are combined with remedial standards as broad
ranging as a grave abuse of discretion amounting to lack or excess of jurisdiction,
the result will be, it is respectfully submitted, to propel courts into the uncharted
ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making
departments -- the legislative and executive departments -- must be given a real and
effective opportunity to fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to
Attain Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles relating to the national economy and patrimony, should be
read and understood in relation to the other sections in said article, especially Secs.
1 and 13 thereof which read:
Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of
national economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the
nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by expressing preference in favor of qualified Filipinos in
the grant of rights, privileges and concessions covering the national economy and
patrimony[27] and in the use of Filipino labor, domestic materials and locally-produced
goods; (2) by mandating the State to adopt measures that help make them
competitive;[28] and (3) by requiring the State to develop a self-reliant and
independent national economy effectively controlled by Filipinos.[29] In similar
language, the Constitution takes into account the realities of the outside world as it
requires the pursuit of a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity;[30] and
speaks of industries which are competitive in both domestic and foreign markets as
well as of the protection of Filipino enterprises against unfair foreign competition and
trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al.,[31] this Court held that Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable. However, as the constitutional
provision itself states, it is enforceable only in regard to the grants of rights,
privileges and concessions covering national economy and patrimony and not to
every aspect of trade and commerce. It refers to exceptions rather than the rule. The
issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are enough balancing provisions in
the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO
Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the bases of equality and reciprocity
and limits protection of Filipino enterprises only against foreign competition and trade
practices that are unfair.[32] In other words, the Constitution did not intend to pursue
an isolationist policy. It did not shut out foreign investments, goods and services in
the development of the Philippine economy. While the Constitution does not
encourage the unlimited entry of foreign goods, services and investments into the
country, it does not prohibit them either.In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-
in advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats
and veto powers in the Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each members vote equal in weight to that of any
other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the
Ministerial Conference and the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions and the
40
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals.[33]
Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to push
their economic agenda more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating strategy rooted in law. Thus,
the basic principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to share in the growth in international
trade commensurate with the needs of their economic development. These basic
principles are found in the preamble[34] of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance
the means for doing so in a manner consistent with their respective needs and
concerns at different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of their
economic development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Uruguay Round
of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be effected within
a period of six (6) years while developing countries -- including the Philippines --
are required to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce
domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed
countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed
for developed countries and a longer period of ten (10) years within which to effect
such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary, the weaker situations of
developing nations like the Philippines have been taken into account; thus, there
would be no basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to steer the ship of
state into the yet uncharted sea of economic liberalization. But such decision cannot
be set aside on the ground of grave abuse of discretion, simply because we disagree
with it or simply because we believe only in other economic policies. As earlier
stated, the Court in taking jurisdiction of this case will not pass upon the advantages
and disadvantages of trade liberalization as an economic policy. It will only perform
its constitutional duty of determining whether the Senate committed grave abuse of
discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and independent national
economy[35] does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the
international community. As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it means avoiding mendicancy
in the international community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic industries as in
the development of natural resources and public utilities.[36]
The WTO reliance on most favored nation, national treatment, and trade
without discrimination cannot be struck down as unconstitutional as in fact they are
rules of equality and reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on equality and reciprocity, [37] the fundamental law
encourages industries that are competitive in both domestic and foreign markets,
thereby demonstrating a clear policy against a sheltered domestic trade
41
environment, but one in favor of the gradual development of robust industries that
can compete with the best in the foreign markets. Indeed, Filipino managers and
Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor does it contain any specific pronouncement that Filipino
companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it
will -- as promised by its promoters -- expand the countrys exports and generate
more employment?
Will it bring more prosperity, employment, purchasing power and quality
products at the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers,
for which they are answerable to our people during appropriate electoral
exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution
was drafted and ratified in 1987. That does not mean however that the Charter is
necessarily flawed in the sense that its framers might not have anticipated the
advent of a borderless world of business. By the same token, the United Nations was
not yet in existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have contemplated a
diminution of the absoluteness of sovereignty when the Philippines signed the UN
Charter, thereby effectively surrendering part of its control over its foreign relations to
the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not
only the vagaries of contemporary events. They should be interpreted to cover even
future and unknown circumstances. It is to the credit of its drafters that a Constitution
can withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist[38] explains:
The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity
of its laws, regulations and administrative procedures with its obligations as provided
in the annexed Agreements.[39] Petitioners maintain that this undertaking unduly
limits, restricts and impairs Philippine sovereignty, specifically the legislative power
which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the
Congress of the Philippines. It is an assault on the sovereign powers of the
Philippines because this means that Congress could not pass legislation that will be
good for our national interest and general welfare if such legislation will not conform
with the WTO Agreement, which not only relates to the trade in goods x x x but also
to the flow of investments and money x x x as well as to a whole slew of agreements
on socio-cultural matters x x x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the
power to tax, which is lodged in the Congress.[41] And while the Constitution allows
Congress to authorize the President to fix tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts, such authority is subject to
specified limits and x x x such limitations and restrictions as Congress may provide,
[42]
as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of the
world. In its Declaration of Principles and State Policies, the Constitution adopts the
generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with
all nations."[43] By the doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be automatically
part of our own laws.[44] One of the oldest and most fundamental rules in international
law is pacta sunt servanda -- international agreements must be performed in good
faith. A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties x x x. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the obligations undertaken.[45]
42
 By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a convention
or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse matters as, for example,
the lease of naval bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international organizations. [46] The
sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed by the
very nature of membership in the family of nations and (2) limitations imposed by
treaty stipulations. As aptly put by John F. Kennedy, Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over. The age of
interdependence is here.[47]
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the concept of
sovereignty as auto-limitation.47-A Under Article 2 of the UN Charter, (a)ll members
shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against
which the United Nations is taking preventive or enforcement action. Such
assistance includes payment of its corresponding share not merely in administrative
expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle
East and in the Congo were expenses of the United Nations under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the
said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within their
own territory.Another example: although sovereign equality and domestic jurisdiction
of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and security under
Chapter VII of the Charter. A final example: under Article 103, (i)n the event of a
conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their
obligation under the present charter shall prevail, thus unquestionably denying the
Philippines -- as a member -- the sovereign power to make a choice as to which of
conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral and multilateral -- that involve limitations on
Philippine sovereignty.These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income,
where the Philippines agreed, among others, to exempt from tax, income
received in the Philippines by, among others, the Federal Reserve Bank
of the United States, the Export/Import Bank of the United States, the
Overseas Private Investment Corporation of the United States. Likewise,
in said convention, wages, salaries and similar remunerations paid by the
United States to its citizens for labor and personal services performed by
them as employees or officials of the United States are exempt from
income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of
double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and
supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other
similar duties, taxes or charges fuel, lubricating oils, spare parts, regular
equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of
obtaining transit or visitor visas for a sojourn in the Philippines not
exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding
59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed
that premises of Special Missions in the Philippines are inviolable and its
agents can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties,
taxes and related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the
Philippines agreed to be governed by the Vienna Convention on the Law
of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of
a treaty, any question of international law, the existence of any fact which,
if established, would constitute a breach of international obligation.
43
 In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police power. The
underlying consideration in this partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute resolution procedures reduce
the risks of larger countries exploiting raw economic power to bully smaller countries,
by subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success
to the smaller countrys market.[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty
may be waived without violating the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of x x x cooperation and amity with all
nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and
Basic Principles of the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS)[49] intrudes on the power of the Supreme Court to promulgate rules
concerning pleading, practice and procedures.[50]
To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitful to
restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28, if the subject
matter of a patent is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process.Therefore,
Members shall provide, in at least one of the following circumstances, that any
identical product when produced without the consent of the patent owner shall,
in the absence of proof to the contrary, be deemed to have been obtained by
the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made
by the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets shall be
taken into account.
From the above, a WTO Member is required to provide a rule of disputable
(note the words in the absence of proof to the contrary) presumption that a product
shown to be identical to one produced with the use of a patented process shall be
deemed to have been obtained by the (illegal) use of the said patented process, (1)
where such product obtained by the patented product is new, or (2) where there is
substantial likelihood that the identical product was made with the use of the said
patented process but the owner of the patent could not determine the exact process
used in obtaining such identical product. Hence, the burden of proof contemplated by
Article 34 should actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood, actually refers to
the burden of evidence (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced without the use of
the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof
since, regardless of the presumption provided under paragraph 1 of Article 34, such
owner still has to introduce evidence of the existence of the alleged identical product,
the fact that it is identical to the genuine one produced by the patented process and
the fact of newness of the genuine product or the fact of substantial likelihood that
the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of
evidence as the present law on the subject, Republic Act No. 165, as amended,
otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility
model shall consist in unauthorized copying of the patented design or utility model
for the purpose of trade or industry in the article or product and in the making, using
or selling of the article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or utility model shall
constitute evidence of copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented
process is NEW or (2) there is a substantial likelihood that the identical product was
made by the process and the process owner has not been able through reasonable
effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing
the provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the
third issue -- derogation of legislative power - will apply to this fourth issue
also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if
44
any actually exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute settlement
inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of
procedure will not be substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is
flawed because it is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of the Republic upon
authority of the President. They contend that the second letter of the President to the
Senate[53] which enumerated what constitutes the Final Act should have been the
subject of concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument which
records the winding up of the proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties, conventions, recommendations and
other acts agreed upon and signed by the plenipotentiaries attending the conference.
[54]
It is not the treaty itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of the Final Act
Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations is
contained in just one page[55] in Vol. I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations. By signing said Final Act, Secretary Navarro as representative of
the Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what
the Final Act required from its signatories, namely, concurrence of the Senate in the
WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need
for ratification. They were approved by the ministers by virtue of Article XXV: 1 of
GATT which provides that representatives of the members can meet to give effect to
those provisions of this Agreement which invoke joint action, and generally with a
view to facilitating the operation and furthering the objectives of this Agreement.[56]
The Understanding on Commitments in Financial Services also approved in
Marrakesh does not apply to the Philippines. It applies only to those 27 Members
which have indicated in their respective schedules of commitments on standstill,
elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information,
and national treatment with respect to access to payment, clearing systems and
refinancing available in the normal course of business.[57]
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts,[58] as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct
of trade relations among its Members in matters to the agreements and
associated legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2,
and 3 (hereinafter referred to as Multilateral Agreements) are integral parts of
this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on
those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A
(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final
Act adopted at the conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended or modified (hereinafter referred to as GATT
1947).
It should be added that the Senate was well-aware of what it was concurring in
as shown by the members deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994,[59] the senators of the Republic minutely
dissected what the Senate was concurring in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until
the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he
making a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Taada, please.
45
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization Agreement. And if
that is the one that is being submitted now, I think it satisfies both the Constitution
and the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Courts constitutionally imposed duty to
determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97.Procedurally, a writ of certiorari grounded on
grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of
Court when it is amply shown that petitioners have no other plain, speedy and
adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction. [61] Mere abuse of discretion is not
enough.It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. [62] Failure
on the part of the petitioner to show grave abuse of discretion will result in the
dismissal of the petition.[63]
In rendering this Decision, this Court never forgets that the Senate, whose act
is under review, is one of two sovereign houses of Congress and is thus entitled to
great respect in its actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the foregoing
well-accepted definition of grave abuse of discretion and the presumption of
regularity in the Senates processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senates exercise of its power of concurrence
in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad constitutional principles require
the State to develop an independent national economy effectively controlled by
Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and
locally produced goods. But it is equally true that such principles -- while serving as
judicial and legislative guides -- are not in themselves sources of causes of
action. Moreover, there are other equally fundamental constitutional principles relied
upon by the Senate which mandate the pursuit of a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity and the promotion of industries which are competitive in both
domestic and foreign markets, thereby justifying its acceptance of said treaty. So too,
the alleged impairment of sovereignty in the exercise of legislative and judicial
powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution
to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly
gave its consent to the WTO Agreement thereby making it a part of the law of the
land is a legitimate exercise of its sovereign duty and power. We find no patent and
gross arbitrariness or despotism by reason of passion or personal hostility in such
exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal
reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial
power and duty. Ineludably, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is outside the
realm of judicial inquiry and review. That is a matter between the elected policy
makers and the people. As to whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a matter that our people
should determine in electing their policy makers. After all, the WTO Agreement
allows withdrawal of membership, should this be the political desire of a member.
46
 The eminent futurist John Naisbitt, author of the best seller Megatrends,
predicts an Asian Renaissance[65] where the East will become the dominant region of
the world economically, politically and culturally in the next century. He refers to the
free market espoused by WTO as the catalyst in this coming Asian
ascendancy. There are at present about 31 countries including China, Russia and
Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections
against possible limitations on national sovereignty, the WTO remains as the only
viable structure for multilateral trading and the veritable forum for the development of
international trade law. The alternative to WTO is isolation, stagnation, if not
economic self-destruction. Duly enriched with original membership, keenly aware of
the advantages and disadvantages of globalization with its on-line experience, and
endowed with a vision of the future, the Philippines now straddles the crossroads of
an international strategy for economic prosperity and stability in the new
millennium. Let the people, through their duly authorized elected officers, make their
free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. L-5279 October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC.,
petitioner, vs. SECRETARY OF EDUCATION and the BOARD OF
TEXTBOOKS, respondents.
BENGZON, J.:
The petitioning colleges and universities request that Act No. 2706 as amended by
Act No. 3075 and Commonwealth Act No. 180 be declared unconstitutional,
because: A. They deprive owners of schools and colleges as well as teachers and
parents of liberty and property without due process of law; B. They deprive parents
of their natural rights and duty to rear their children for civic efficiency; and C. Their
provisions conferring on the Secretary of Education unlimited power and discretion to
prescribe rules and standards constitute an unlawful delegation of legislative power.
A printed memorandum explaining their position in extenso is attached to the record.
The Government's legal representative submitted a mimeographed memorandum
contending that, (1) the matter constitutes no justiciable controversy exhibiting
unavoidable necessity of deciding the constitutional questions; (2) petitioners are in
estoppel to challenge the validity of the said acts; and (3) the Acts are constitutionally
valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and
recognition of private schools and colleges obligatory for the Secretary of Public
Instruction." Under its provisions, the Department of Education has, for the past 37
years, supervised and regulated all private schools in this country apparently without
audible protest, nay, with the general acquiescence of the general public and the
parties concerned.
It should be understandable, then, that this Court should be doubly reluctant to
consider petitioner's demand for avoidance of the law aforesaid, specially where, as
respondents assert, petitioners suffered no wrong—nor allege any—from the
enforcement of the criticized statute.
It must be evident to any one that the power to declare a legislative
enactment void is one which the judge, conscious of the fallability of the
human judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the
responsibility. (Cooley Constitutional Limitations, 8th Ed., Vol. I, p. 332.)
When a law has been long treated as constitutional and important rights
have become dependent thereon, the Court may refuse to consider an
attack on its validity. (C. J. S. 16, p. 204.)
47
 As a general rule, the constitutionality of a statute will be passed on only if,
and to the extent that, it is directly and necessarily involved in a justiciable
controversy and is essential to the protection of the rights of the parties
concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of a citizen to
own and operate a school is guaranteed by the Constitution, and any law requiring
previous governmental approval or permit before such person could exercise said
right, amounts to censorship of previous restraint, a practice abhorent to our system
of law and government. Petitioners obviously refer to section 3 of Act No. 2706 as
amended which provides that before a private school may be opened to the public it
must first obtain a permit from the Secretary of Education. The Solicitor General on
the other hand points out that none of the petitioners has cause to present this issue,
because all of them have permits to operate and are actually operating by virtue of
their permits.1 And they do not assert that the respondent Secretary of Education has
threatened to revoke their permits. They have suffered no wrong under the terms of
law—and, naturally need no relief in the form they now seek to obtain.
It is an established principle that to entitle a private individual immediately in
danger of sustaining a direct injury as the result of that action and it is not
sufficient that he has merely a general to invoke the judicial power to
determine the validity of executive or legislative action he must show that
he has sustained or is interest common to all members of the public. (Ex
parte Levitt, 302 U. S. 633 82 L. Ed. 493.)
Courts will not pass upon the constitutionality of a law upon the complaint of
one who fails to show that he is injured by its operation. (Tyler vs. Judges,
179 U. S. 405; Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze
Corp., 323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when the
interests of litigant require the use of that judicial authority for their
protection against actual interference, a hypothetical threat being
insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)
Bona fide suit.—Judicial power is limited to the decision of actual cases and
controversies. The authority to pass on the validity of statutes is incidental
to the decision of such cases where conflicting claims under the
Constitution and under a legislative act assailed as contrary to the
Constitution are raised. It is legitimate only in the last resort, and as
necessity in the determination of real, earnest, and vital controversy
between litigants. (Tañada and Fernando, Constitution of the Philippines, p.
1138.)
Mere apprehension that the Secretary of Education might under the law withdraw the
permit of one of petitioners does not constitute a justiciable controversy. (Cf.
Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.)
And action, like this, is brought for a positive purpose, nay, to obtain actual and
positive relief. (Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do not sit
to adjudicate mere academic questions to satisfy scholarly interest therein, however
intellectually solid the problem may be. This is specially true where the issues "reach
constitutional dimensions, for then there comes into play regard for the court's duty
to avoid decision of constitutional issues unless avoidance becomes evasion."
(Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p.
511.)
The above notwithstanding, in view of the several decisions of the United States
Supreme Court quoted by petitioners, apparently outlawing censorship of the kind
objected to by them, we have decided to look into the matter, lest they may allege we
refuse to act even in the face of clear violation of fundamental personal rights of
liberty and property.
Petitioners complain that before opening a school the owner must secure a permit
from the Secretary of Education. Such requirement was not originally included in Act
No. 2706. It was introduced by Commonwealth Act No. 180 approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of
Educational Survey to make a study and survey of education in the Philippines and
of all educational institutions, facilities and agencies thereof. A Board chairmaned by
Dr. Paul Munroe, Columbia University, assisted by a staff of carefully selected
technical members performed the task, made a five-month thorough and impartial
examination of the local educational system, and submitted a report with
recommendations, printed as a book of 671 pages. The following paragraphs are
taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent a
person, however disqualified by ignorance, greed, or even immoral
character, from opening a school to teach the young. It it true that in order
to post over the door "Recognized by the Government," a private adventure
school must first be inspected by the proper Government official, but a
refusal to grant such recognition does not by any means result in such a
school ceasing to exist. As a matter of fact, there are more such
unrecognized private schools than of the recognized variety. How many, no
one knows, as the Division of Private Schools keeps records only of the
recognized type.
Conclusion.—An unprejudiced consideration of the fact presented under the
caption Private Adventure Schools leads but to one conclusion, viz.: the
great majority of them from primary grade to university are money-making
devices for the profit of those who organize and administer them. The
people whose children and youth attend them are not getting what they pay
for. It is obvious that the system constitutes a great evil. That it should be
permitted to exist with almost no supervision is indefensible. The
suggestion has been made with the reference to the private institutions of
university grade that some board of control be organized under legislative
control to supervise their administration. The Commission believes that the
recommendations it offers at the end of this chapter are more likely to bring
about the needed reforms.
48
 Recommendations.—The Commission recommends that legislation be
enacted to prohibit the opening of any school by an individual or
organization without the permission of the Secretary of Public Instruction.
That before granting such permission the Secretary assure himself that
such school measures up to proper standards in the following respects, and
that the continued existence of the school be dependent upon its continuing
to conform to these conditions:
(1) The location and construction of the buildings, the lighting and
ventilation of the rooms, the nature of the lavatories, closets, water supply,
school furniture and apparatus, and methods of cleaning shall be such as to
insure hygienic conditions for both pupils and teachers.
(2) The library and laboratory facilities shall be adequate to the needs of
instruction in the subjects taught.
(3) The classes shall not show an excessive number of pupils per teacher.
The Commission recommends 40 as a maximum.
(4) The teachers shall meet qualifications equal to those of teachers in the
public schools of the same grade.
xxx xxx xxx
In view of these findings and recommendations, can there be any doubt that the
Government in the exercise of its police power to correct "a great evil" could validly
establish the "previous permit" system objected to by petitioners? This is what
differentiates our law from the other statutes declared invalid in other jurisdictions.
And if any doubt still exists, recourse may now be had to the provision of our
Constitution that "All educational institutions shall be under the supervision and
subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate
establishments or business occupations implies the power to require a permit or
license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to revoke such
permit on account of violation of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned statutes
"conferring on the Secretary of Education unlimited power and discretion to prescribe
rules and standards constitute an unlawful delegation of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as amended,
provides:
It shall be the duty of the Secretary of Public Instruction to maintain a
general standard of efficiency in all private schools and colleges of the
Philippines so that the same shall furnish adequate instruction to the public,
in accordance with the class and grade of instruction given in them, and for
this purpose said Secretary or his duly authorized representative shall have
authority to advise, inspect, and regulate said schools and colleges in order
to determine the efficiency of instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description, either general
or specific, of what constitutes a 'general standard of efficiency.' Nowhere in this Act
is there any indication of any basis or condition to ascertain what is 'adequate
instruction to the public.' Nowhere in this Act is there any statement of conditions,
acts, or factors, which the Secretary of Education must take into account to
determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:
The Department of Education shall from time to time prepare and publish in
pamphlet form the minimum standards required of primary, intermediate,
and high schools, and colleges granting the degrees of Bachelor of Arts,
Bachelor of Science, or any other academic degree. It shall also from time
to time prepare and publish in pamphlet form the minimum standards
required of law, medical, dental, pharmaceutical, engineering, agricultural
and other medical or vocational schools or colleges giving instruction of a
technical, vocational or professional character.
Petitioners reason out, "this section leaves everything to the uncontrolled discretion
of the Secretary of Education or his department. The Secretary of Education is given
the power to fix the standard. In plain language, the statute turns over to the
Secretary of Education the exclusive authority of the legislature to formulate
standard. . . .."
It is quite clear the two sections empower and require the Secretary of Education to
prescribe rules fixing minimum standards of adequate and efficient instruction to be
observed by all such private schools and colleges as may be permitted to operate.
The petitioners contend that as the legislature has not fixed the standards, "the
provision is extremely vague, indefinite and uncertain"—and for that reason
constitutionality objectionable. The best answer is that despite such alleged
vagueness the Secretary of Education has fixed standards to ensure adequate and
efficient instruction, as shown by the memoranda fixing or revising curricula, the
school calendars, entrance and final examinations, admission and accreditation of
students etc.; and the system of private education has, in general, been satisfactorily
in operation for 37 years. Which only shows that the Legislature did and could,
validly rely upon the educational experience and training of those in charge of the
Department of Education to ascertain and formulate minimum requirements of
adequate instruction as the basis of government recognition of any private school.
At any rate, petitioners do not show how these standards have injured any of them or
interfered with their operation. Wherefore, no reason exists for them to assail the
validity of the power nor the exercise of the power by the Secretary of Education.
True, the petitioners assert that, the Secretary has issued rules and regulations
"whimsical and capricious" and that such discretionary power has produced arrogant
inspectors who "bully heads and teachers of private schools." Nevertheless, their
remedy is to challenge those regulations specifically, and/or to ring those inspectors
to book, in proper administrative or judicial proceedings—not to invalidate the law.
For it needs no argument, to show that abuse by the officials entrusted with the
execution of a statute does not per se demonstrate the unconstitutionality of such
statute.
Anyway, we find the defendants' position to be sufficiently sustained by the decision
in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the statute that
authorized the Director of Agriculture to "designate standards for the commercial
grades of abaca, maguey and sisal" against vigorous attacks on the ground of invalid
delegation of legislative power.
49
Indeed "adequate and efficient instruction" should be considered sufficient, in the
same way as "public welfare" "necessary in the interest of law and order" "public
interest" and "justice and equity and substantial merits of the case" have been held
sufficient as legislative standards justifying delegation of authority to regulate. (See
Tañada and Fernando, Constitution of the Philippines, p. 793, citing Philippine
cases.)
On this phase of the litigation we conclude that there has been no undue delegation
of legislative power.
In this connection, and to support their position that the law and the Secretary of
Education have transcended the governmental power of supervision and regulation,
the petitioners appended a list of circulars and memoranda issued by the said
Department. However they failed to indicate which of such official documents was
constitutionally objectionable for being "capricious," or pain "nuisance"; and it is one
of our decisional practices that unless a constitutional point is specifically raised,
insisted upon and adequately argued, the court will not consider it. (Santiago vs. Far
Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has placed in the hands
of the Secretary of Education complete control of the various activities of private
schools, and why the statute should be struck down as unconstitutional. It is clear in
our opinion that the statute does not in express terms give the
Secretary complete control. It gives him powers to inspect private schools, to
regulate their activities, to give them official permits to operate under certain
conditions, and to revoke such permits for cause. This does not amount
to complete control. If any of such Department circulars or memoranda issued by the
Secretary go beyond the bounds of regulation and seeks to
establish complete control, it would surely be invalid. Conceivably some of them are
of this nature, but besides not having before us the text of such circulars, the
petitioners have omitted to specify. In any event with the recent approval of Republic
Act No. 1124 creating the National Board of Education, opportunity for administrative
correction of the supposed anomalies or encroachments is amply afforded herein
petitioners. A more expeditious and perhaps more technically competent forum
exists, wherein to discuss the necessity, convenience or relevancy of the measures
criticized by them. (See also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control over private
schools, the question arises whether the power of supervision and regulation granted
to the State by section 5 Article XIV was meant to include control of private
educational institutions. It is enough to point out that local educators and writers think
the Constitution provides for control of Education by the State. (See Tolentino,
Government of the Philippine Constitution, Vol. II, p. 615; Benitez, Philippine Social
Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational institutions" even as
it enumerates certain fundamental objectives of all education to wit, the development
of moral character, personal discipline, civic conscience and vocational efficiency,
and instruction in the duties of citizenship. (Malcolm & Laurel, Philippine
Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power to regulate
means power to control, and quotes from the proceedings of the Constitutional
Convention to prove that State control of private education was intended by the
organic law. It is significant to note that the Constitution grants power to supervise
and to regulate. Which may mean greater power than mere regulation.
III. Another grievance of petitioners—probably the most significant—is the
assessment of 1 per cent levied on gross receipts of all private schools for additional
Government expenses in connection with their supervision and regulation. The
statute is section 11-A of Act No. 2706 as amended by Republic Act No. 74 which
reads as follows:
SEC. 11-A. The total annual expense of the Office of Private Education
shall be met by the regular amount appropriated in the annual Appropriation
Act: Provided, however, That for additional expenses in the supervision and
regulation of private schools, colleges and universities and in the purchase
of textbook to be sold to student of said schools, colleges and universities
and President of the Philippines may authorize the Secretary of Instruction
to levy an equitable assessment from each private educational institution
equivalent to one percent of the total amount accruing from tuition and other
fees: . . . and non-payment of the assessment herein provided by any
private school, college or university shall be sufficient cause for the
cancellation by the Secretary of Instruction of the permit for recognition
granted to it.
Petitioners maintain that this is a tax on the exercise of a constitutional right—the
right to open a school, the liberty to teach etc. They claim this is unconstitutional, in
the same way that taxes on the privilege of selling religious literature or of publishing
a newspaper—both constitutional privileges—have been held, in the United States,
to be invalid as taxes on the exercise of a constitutional right.
The Solicitor General on the other hand argues that insofar as petitioners' action
attempts to restrain the further collection of the assessment, courts have no
jurisdiction to restrain the collection of taxes by injunction, and in so far as they seek
to recover fees already paid the suit, it is one against the State without its consent.
Anyway he concludes, the action involving "the legality of any tax impost or
assessment" falls within the original jurisdiction of Courts of First Instance.
There are good grounds in support of Government's position. If this levy of 1 per cent
is truly a mere fee—and not a tax—to finance the cost of the Department's duty and
power to regulate and supervise private schools, the exaction may be upheld; but
such point involves investigation and examination of relevant data, which should best
be carried out in the lower courts. If on the other hand it is a tax, petitioners' issue
would still be within the original jurisdiction of the Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act No. 139 which
in its section 1 provides:
The textbooks to be used in the private schools recognized or authorized by
the government shall be submitted to the Board (Board of Textbooks) which
shall have the power to prohibit the use of any of said textbooks which it
may find to be against the law or to offend the dignity and honor of the
government and people of the Philippines, or which it may find to be against
50
 the general policies of the government, or which it may deem pedagogically
unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form". They
cite two U. S. cases (Miss. and Minnesota) outlawing statutes that impose previous
restraints upon publication of newspapers, or curtail the right of individuals to
disseminate teachings critical of government institutions or policies.
Herein lies another important issue submitted in the cause. The question is really
whether the law may be enacted in the exercise of the State's constitutional power
(Art. XIV, sec. 5) to supervise and regulate private schools. If that power amounts to
control of private schools, as some think it is, maybe the law is valid. In this
connection we do not share the belief that section 5 has added new power to what
the State inherently possesses by virtue of the police power. An express power is
necessarily more extensive than a mere implied power. For instance, if there is
conflict between an express individual right and the express power to control private
education it cannot off-hand be said that the latter must yield to the former—conflict
of two express powers. But if the power to control education ismerely implied from
the police power, it is feasible to uphold the express individual right, as was probably
the situation in the two decisions brought to our attention, of Mississippi and
Minnesota, states where constitutional control of private schools is not expressly
produced.
However, as herein previously noted, no justiciable controversy has been presented
to us. We are not informed that the Board on Textbooks has prohibited this or that
text, or that the petitioners refused or intend to refuse to submit some textbooks, and
are in danger of losing substantial privileges or rights for so refusing.
The average lawyer who reads the above quoted section of Republic Act 139 will fail
to perceive anything objectionable. Why should not the State prohibit the use of
textbooks that are illegal, or offensive to the Filipinos or adverse to governmental
policies or educationally improper? What's the power of regulation and supervision
for? But those trained to the investigation of constitutional issues are likely to
apprehend the danger to civil liberties, of possible educational dictatorship or thought
control, as petitioners' counsel foresee with obvious alarm. Much depends, however,
upon the execution and implementation of the statute. Not that constitutionality
depends necessarily upon the law's effects. But if the Board on Textbooks in its
actuations strictly adheres to the letter of the section and wisely steers a middle
course between the Scylla of "dictatorship" and the Charybdis of "thought control",
no cause for complaint will arise and no occasion for judicial review will develop.
Anyway, and again, petitioners now have a more expeditious remedy thru an
administrative appeal to the National Board of Education created by Republic Act
1124.
Of course it is necessary to assure herein petitioners, that when and if, the dangers
they apprehend materialize and judicial intervention is suitably invoked, after all
administrative remedies are exhausted, the courts will not shrink from their duty to
delimit constitutional boundaries and protect individual liberties.
IV. For all the foregoing considerations, reserving to the petitioners the right to
institute in the proper court, and at the proper time, such actions as may call for
decision of the issue herein presented by them, this petition for prohibition will be
denied. So ordered.
[G.R. No. 152295. July 9, 2002]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE
ATANGAN,petitioners, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order or preliminary injunction. The petition seeks to prevent
the postponement of the Sangguniang Kabataan (SK for brevity) elections originally
scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the
age requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class
suit, on their own behalf and on behalf of other youths similarly situated. Petitioners
claim that they are in danger of being disqualified to vote and be voted for in the SK
elections should the SK elections on May 6, 2002 be postponed to a later
date. Under the Local Government Code of 1991 (R.A. No. 7160), membership in
the SK is limited to youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents connived, confederated and
conspired to postpone the May 6, 2002 SK elections and to lower the membership
age in the SK to at least 15 but less than 18 years of age. Petitioners assail the
alleged conspiracy because youths at least 18 but not more than 21 years old will be
summarily and unduly dismembered, unfairly discriminated, unnecessarily
disenfranchised, unjustly disassociated and obnoxiously disqualified from the SK
organization.[1]
Thus, petitioners pray for the issuance of a temporary restraining order or
preliminary injunction -
a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents issuances, orders and actions and the like
in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set by the
present law and in accordance with Comelec Resolutions No. 4713 and 4714 and to
expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason, there
must be a definite date for said elections, for example, July 15, 2002, and the
present SK membership, except those incumbent SK officers who were elected on
May 6, 1996, shall be allowed to run for any SK elective position even if they are
more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK in
every sanggunian and the NYC to vacate their post after the barangay elections.[2]
51
The Facts and lowered the membership age in the SK to at least 15 but not more than 18 years
The SK is a youth organization originally established by Presidential Decree of age.
No. 684 as the Kabataang Barangay (KB for brevity). The KB was composed of all
barangay residents who were less than 18 years old, without specifying the minimum On March 11, 2002, petitioners filed the instant petition.
age. The KB was organized to provide its members with the opportunity to express On March 11, 2002, the Senate approved the Bicameral Committees
their views and opinions on issues of transcendental importance.[3] consolidated bill and on March 13, 2002, the House of Representatives approved the
The Local Government Code of 1991 renamed the KB to SK and limited SK same. The President signed the approved bill into law on March 19, 2002.
membership to those youths at least 15 but not more than 21 years of age. [4] The SK
remains as a youth organization in every barangay tasked to initiate programs to The Issues
enhance the social, political, economic, cultural, intellectual, moral, spiritual, and Petitioners[16] raise the following grounds in support of their petition:
physical development of the youth.[5] The SK in every barangay is composed of a I.
chairperson and seven members, all elected by the Katipunan ng RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
Kabataan. The Katipunan ng Kabataan in every barangay is composed of all citizens UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE OF
actually residing in the barangay for at least six months and who meet the DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN
membership age requirement. THEY INTENDED TO POSTPONE THE SK ELECTIONS.
II.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
SK elections to the first Monday of May of 1996 and every three years thereafter. RA UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE OF
No. 7808 mandated the Comelec to supervise the conduct of the SK elections under DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN
rules the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 THEY INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE OUT AND
issued Resolution Nos. 4713[6] and 4714[7] to govern the SK elections on May 6, DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS [17] (SIC) THAN 21
2002. YEARS OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
for brevity) sent a letter[8] to the Comelec, demanding that the SK elections be held UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE OF
as scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN
her letter within 10 days upon receipt of the letter, otherwise, she will seek judicial THEY WILLFULLY FAILED TO FUND THE SK ELECTION PURPORTEDLY TO
relief. POSTPONE THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME
AND MACHINATION IN SPITE OF THE FACT THAT THERE ARE AVAILABLE
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), FUNDS FOR THE PURPOSE.
then Comelec Chairman, wrote identical letters to the Speaker of the House [9] and IV.
the Senate President[10] about the status of pending bills on the SK and Barangay THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR
elections. In his letters, the Comelec Chairman intimated that it was operationally RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF THE
very difficult to hold both elections simultaneously in May 2002. Instead, the CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF LAW AND
Comelec Chairman expressed support for the bill of Senator Franklin Drilon that CONSTITUTION.[18]
proposed to hold the Barangay elections in May 2002 and postpone the SK elections
to November 2002. The Courts Ruling
The petition is bereft of merit.
Ten days lapsed without the Comelec responding to the letter of At the outset, the Court takes judicial notice of the following events that have
Montesclaros. Subsequently, petitioners received a copy of Comelec En transpired since petitioners filed this petition:
Banc Resolution No. 4763[11] dated February 5, 2002 recommending to Congress the 1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections
postponement of the SK elections to November 2002 but holding the Barangay were not held as scheduled.
elections in May 2002 as scheduled.[12] 2. Congress enacted RA No. 9164[19] which provides that voters and
candidates for the SK elections must be at least 15 but less than 18
On March 6, 2002, the Senate and the House of Representatives passed their years of age on the day of the election.[20] RA No. 9164 also provides
respective bills postponing the SK elections. On March 11, 2002, the Bicameral that there shall be a synchronized SK and Barangay elections on July
Conference Committee (Bicameral Committee for brevity) of the Senate and the 15, 2002.
House came out with a Report[13] recommending approval of the reconciled bill 3. The Comelec promulgated Resolution No. 4846, the rules and
consolidating Senate Bill No. 2050[14] and House Bill No. 4456.[15] The Bicameral regulations for the conduct of the July 15, 2002 synchronized SK and
Committees consolidated bill reset the SK and Barangay elections to July 15, 2002 Barangay elections.

52

Petitioners, who all claim to be 20 years old, argue that the postponement of
the May 6, 2002 SK elections disenfranchises them, preventing them from voting
and being voted for in the SK elections. Petitioners theory is that if the SK elections
were postponed to a date later than May 6, 2002, the postponement would disqualify
from SK membership youths who will turn 21 years old between May 6, 2002 and the
date of the new SK elections. Petitioners claim that a reduction in the SK
membership age to 15 but less than 18 years of age from the then membership age
of 15 but not more than 21 years of age would disqualify about seven million
youths. The public respondent’s failure to hold the elections on May 6, 2002 would
prejudice petitioners and other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to
hold the SK elections on May 6, 2002 and should it be postponed, the SK elections
should be held not later than July 15, 2002; (2) prevent public respondents from
passing laws and issuing resolutions and orders that would lower the membership
age in the SK; and (3) compel public respondents to allow petitioners and those who
have turned more than 21 years old on May 6, 2002 to participate in any re-
scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases
only if all the following requisites are complied with, namely: (1) the existence of an
actual and appropriate case or controversy; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional question is the lis
mota of the case.[21]
In the instant case, there is no actual controversy requiring the exercise of the
power of judicial review. While seeking to prevent a postponement of the May 6,
2002 SK elections, petitioners are nevertheless amenable to a resetting of the SK
elections to any date not later than July 15, 2002. RA No. 9164 has reset the SK
elections to July 15, 2002, a date acceptable to petitioners. With respect to the date
of the SK elections, there is therefore no actual controversy requiring judicial
intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a law. A
proposed bill creates no right and imposes no duty legally enforceable by the
Court. A proposed bill, having no legal effect, violates no constitutional right or
duty. The Court has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory opinion
on a proposed act of Congress. The power of judicial review cannot be
exercised in vacuo.[22] The second paragraph of Section 1, Article VIII of the
Constitution states
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)
Thus, there can be no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from
passing any law, or from setting into motion the legislative mill according to its
internal rules. Thus, the following acts of Congress in the exercise of its legislative
powers are not subject to judicial restraint: the filing of bills by members of Congress,
the approval of bills by each chamber of Congress, the reconciliation by the
Bicameral Committee of approved bills, and the eventual approval into law of the
reconciled bills by each chamber of Congress.Absent a clear violation of specific
constitutional limitations or of constitutional rights of private parties, the Court cannot
exercise its power of judicial review over the internal processes or procedures of
Congress.[23]
The Court has also no power to dictate to Congress the object or subject of bills
that Congress should enact into law. The judicial power to review the constitutionality
of laws does not include the power to prescribe to Congress what laws to enact. The
Court has no power to compel Congress by mandamus to enact a law allowing
petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK
elections. To do so would destroy the delicate system of checks and balances finely
crafted by the Constitution for the three co-equal, coordinate and independent
branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No.
684, the original charter of the SK, which fixed the maximum age for membership in
the SK to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government
Code of 1991.Every law passed by Congress is always subject to amendment or
repeal by Congress. The Court cannot restrain Congress from amending or
repealing laws, for the power to make laws includes the power to change the laws.[24]
The Court cannot also direct the Comelec to allow over-aged voters to vote or
be voted for in an election that is limited under RA No. 9164 to youths at least 15 but
less than 18 years old. A law is needed to allow all those who have turned more than
21 years old on or after May 6, 2002 to participate in the July 15, 2002 SK
elections. Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK
members, and cannot participate in the July 15, 2002 SK elections. Congress will
have to decide whether to enact an amendatory law. Petitioners remedy is
legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A
party must show that he has been, or is about to be denied some personal right or
privilege to which he is lawfully entitled.[25] A party must also show that he has a real
interest in the suit. By real interest is meant a present substantial interest, as
distinguished from a mere expectancy or future, contingent, subordinate, or
inconsequential interest.[26]
53

In the instant case, petitioners seek to enforce a right originally conferred by
law on those who were at least 15 but not more than 21 years old. Now, with the
passage of RA No. 9164, this right is limited to those who on the date of the SK
elections are at least 15 but less than 18 years old. The new law restricts
membership in the SK to this specific age group. Not falling within this classification,
petitioners have ceased to be members of the SK and are no longer qualified to
participate in the July 15, 2002 SK elections. Plainly, petitioners no longer have a
personal and substantial interest in the SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed
this petition, RA No. 9164, which reset the SK elections and reduced the age
requirement for SK membership, was not yet enacted into law. After the passage of
RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that could be
unconstitutional. To grant petitioners prayer to be allowed to vote and be voted for in
the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No.
9164. This, petitioners have not done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action and adequately argued.[27]
The only semblance of a constitutional issue, albeit erroneous, that petitioners
raise is their claim that SK membership is a property right within the meaning of the
Constitution.[28] Since certain public offices are reserved for SK officers, petitioners
also claim a constitutionally protected opportunity to occupy these public offices. In
petitioners own words, they and others similarly situated stand to lose their
opportunity to work in the government positions reserved for SK members or officers.
[29]
Under the Local Government Code of 1991, the president of the federation of SK
organizations in a municipality, city or province is an ex-officio member of the
municipal council, city council or provincial board, respectively.[30] The chairperson of
the SK in the barangay is an ex-officio member of the Sangguniang Barangay.[31] The
president of the national federation of SK organizations is an ex-officio member of
the National Youth Commission, with rank of a Department Assistant Secretary.[32]
Congress exercises the power to prescribe the qualifications for SK
membership. One who is no longer qualified because of an amendment in the law
cannot complain of being deprived of a proprietary right to SK membership. Only
those who qualify as SK members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK elections. SK
membership is not a property right protected by the Constitution because it is a mere
statutory right conferred by law. Congress may amend at any time the law to change
or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a
[P]ublic office is a public trust.[33] No one has a vested right to any public office, much
less a vested right to an expectancy of holding a public office. In Cornejo v. Gabriel,
[34]
decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law prohibition, it would be
necessary to consider an office a property. It is, however, well settled x x x that a
public office is not property within the sense of the constitutional guaranties
of due process of law, but is a public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative government, the officers being
mere agents and not rulers of the people, one where no one man or set of men has
a proprietary or contractual right to an office, but where every officer accepts office
pursuant to the provisions of the law and holds the office as a trust for the people he
represents. (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should realize from the
very start that no one has a proprietary right to public office. While the law makes an
SK officer an ex-officio member of a local government legislative council, the law
does not confer on petitioners a proprietary right or even a proprietary expectancy to
sit in local legislative councils. The constitutional principle of a public office as a
public trust precludes any proprietary claim to public office. Even the State policy
directing equal access to opportunities for public service[35] cannot bestow on
petitioners a proprietary right to SK membership or a proprietary expectancy to ex-
officio public offices.
Moreover, while the State policy is to encourage the youths involvement in
public affairs,[36] this policy refers to those who belong to the class of people defined
as the youth. Congress has the power to define who are the youth qualified to join
the SK, which itself is a creation of Congress. Those who do not qualify because
they are past the age group defined as the youth cannot insist on being part of the
youth. In government service, once an employee reaches mandatory retirement age,
he cannot invoke any property right to cling to his office. In the same manner, since
petitioners are now past the maximum age for membership in the SK, they cannot
invoke any property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes the
qualifications of candidates and voters for the SK elections. This law also fixes the
date of the SK elections. Petitioners are not even assailing the constitutionality of RA
No. 9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to
the July 15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse
of discretion in recommending to Congress the postponement of the SK
elections. The very evidence relied upon by petitioners contradict their allegation of
illegality. The evidence consist of the following: (1) Comelec en banc Resolution No.
4763 dated February 5, 2002 that recommended the postponement of the SK
elections to 2003; (2) the letter of then Comelec Chairman Benipayo addressed to
the Speaker of the House of Representatives and the President of the Senate; and
(3) the Conference Committee Report consolidating Senate Bill No. 2050 and House
Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall[37] and to recommend to Congress effective measures to
minimize election spending.[38] The Comelecs acts enjoy the presumption of
regularity in the performance of official duties. [39] These acts cannot constitute proof,
as claimed by petitioners, that there exists a connivance and conspiracy (among)
respondents in contravention of the present law. As the Court held in Pangkat
Laguna v. Comelec,[40] the Comelec, as the government agency tasked with the
54
enforcement and administration of elections laws, is entitled to the presumption of
regularity of official acts with respect to the elections.
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. Petitioners
failed to prove that the Comelec committed grave abuse of discretion in
recommending to Congress the postponement of the May 6, 2002 SK elections. The
evidence cited by petitioners even establishes that the Comelec has demonstrated
an earnest effort to address the practical problems in holding the SK elections on
May 6, 2002. The presumption remains that the decision of the Comelec to
recommend to Congress the postponement of the elections was made in good faith
in the regular course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of
judgment that is patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law. [41] Public respondents having acted
strictly pursuant to their constitutional powers and duties, we find no grave abuse of
discretion in their assailed acts.
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK officers to perpetuate themselves in power, depriving other youths of
the opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK
officials can remain in office only until their successors have been elected or
qualified. On July 15, 2002, when the SK elections are held, the hold-over period
expires and all incumbent SK officials automatically cease to hold their SK offices
and their ex-officio public offices.
In sum, petitioners have no personal and substantial interest in maintaining this
suit. This petition presents no actual justiciable controversy. Petitioners do not cite
any provision of law that is alleged to be unconstitutional. Lastly, we find no grave
abuse of discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.
[G.R. No. 132986. May 19, 2004]
JUAN PONCE ENRILE, petitioner, vs. SENATE ELECTORAL TRIBUNAL and
AQUILINO PIMENTEL, JR., respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, assailing for having been issued with grave abuse of
discretion Resolution 97-22[1] denying petitioners Motion to Annul/Set Aside Partial
Results in Pimentels Protest and to Conduct Another Appreciation of Ballots in the
Presence of All Parties; and Resolution No. 98-02 [2] denying his motion for
reconsideration in SET Case No. 001-95, Aquilino Pimentel, Jr. vs. Gregorio B.
Honasan, et al.
The antecedent facts of the case are as follows:
On January 20, 1995, Senator Aquilino Pimentel, private respondent herein,
filed with the Senate Electoral Tribunal (SET) an election protest against Senator
Juan Ponce Enrile, petitioner, and other senatorial candidates who won in the May
1995 senatorial elections, docketed as SET Case No. 001-95.
On June 30, 1995, petitioner filed his answer with counter-protest. Issues
having been joined, the SET required the parties to submit the list of pilot precincts
numbering not more that 25% of the total precincts involved in respondents protest.
Subsequently, the SET conducted the revision of ballots in the pilot precincts,
namely: Paoay, Ilocos Norte; Tarlac, Tarlac; Tawi-Tawi; Maguindanao; Sulu; Bulacan;
Lanao del Sur; Lanao del Norte; Pasig City; Bian, Laguna; Cuyapo, Nueva Ecija;
Pangasinan; Agusan del Sur and Agusan del Norte. Thereafter, the SET directed the
parties to submit their evidence and memoranda.
On August 21, 1997, the SET, without resolving the election protest, held a
press conference at the Supreme Court Session Hall announcing the partial and
tentative results of the revision of ballots in the pilot precincts. A press release
entitled Partial Results in Pimentels Protest [3] was then issued accompanied by the
tabulation of votes for the parties. In the said tabulation, the name of petitioner
dropped from number 11 to number 15.[4]
On September 24, 1997, petitioner filed a Motion to Set Aside Partial Results in
Pimentels Protest and to Conduct Another Appreciation of Ballots in the Presence of
All Parties.[5] Petitioner alleged that the partial results were manifestly erroneous. The
SET then issued Resolution No. 97-20 requiring all the parties to file their respective
comments on petitioners motion. Only respondent and Senator Nikki Coseteng filed
their separate comments alleging, among others, that petitioners motion is
premature considering that the SET has not yet resolved respondents election
protest.
In its assailed Resolution No. 97-22, the SET admitted there was an oversight,
hence, the tally of votes for Paoay, Ilocos Norte should be made. Consequently, the
55
30,000 votes deducted by the SET from those garnered by petitioner were given
back to him.
Nevertheless, the SET denied petitioners motion, holding that there is no
sufficient basis to discard its partial tabulation.
The Tribunal took pains in reviewing its records and hereby acknowledges that an
adjustment should be made in the tally of votes for the Municipality of Paoay, Ilocos
Norte. However, the Tribunal alone should not be faulted for this oversight. Although
the Regional Tally for Region I was offered in evidence by the Protestant, Protestee
Enrile, far from claming that the same reflected the accurate number of votes
garnered by the senatorial candidates, even went to the extent of objecting to its
admissibility.
In the province of Ilocos Norte, the vote total of Enrile in the SOV/M of 65,343 is
listed in the PCOC at 95,343 or an increase of 30,000 votes. As unearthed, Enriles
votes had already been corrected by the COMELEC in the Regional Tally such that
the 30,000 votes deducted by the Tribunal must be, as it is hereby, given back to
him. Similarly, Mitra regains the 20,000 votes deducted from him in this province.
These corrections, notwithstanding, the Tribunal finds no sufficient basis to discard
its partial tabulation. In fact, the ranking of the parties is not at all affected by the
omission.
Finally, to grant Enriles prayer to have himself represented in the appreciation of
ballots by the Tribunal amounts to an encroachment on judicial functions. Needless
to state, appreciation of evidence is the Tribunals exclusive domain.
Petitioner filed his motion for reconsideration but was denied by the SET in its
Resolution No. 98-02.
Hence, this petition, petitioner contending that:
A.
PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR EXCESS OF
JURISDICTION IN RULING THAT NO SIFFICIENT BASIS EXISTS
TO ANNUL THE MANIFESTLY ERRONEOUS TABULATION OF THE
RESULTS OF REVISION AND APPRECIATION OF BALLOTS.
B.
PUBLIC RESPONDENT COMMITTED PATENT AND GROSS
ERROR IN RECTIFYING THE RESULTS OF THE PHYSICAL
COUNT, AS REFELCTED IN THE REVISION RPORTS BY USING
OTHER ELECTIOB DOCUMENTS.
C.
PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT RELEASED PARTIAL AND TENTATIVE
RESULTS WHICH CAUSED GRAVE PREJUDICE TO HEREIN
PETITIONER.
D.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION IN RULING THAT PETITIONER IS NOT ENTITLED TO
BE HEARD IN THE APPRECIATION PROCEEDINGS.
The main issue for our resolution is whether or not the SET committed grave
abuse of discretion in denying petitioners Motion To Set Aside Partial Results in
Pimentels Protest and to Conduct Another Appreciation of Ballots in the Presence of
all Parties.
Petitioner contends that the partial results released by the SET are erroneous
because they are improbable and not supported by evidence.
In their comments, both respondent and the Solicitor General maintain that the
SET did not commit grave abuse of discretion in issuing the challenged
Resolutions.Furthermore, the Solicitor General asserts that the present petition has
become moot and academic because the tenure of the contested senatorial position
subject of respondents protest where the assailed Resolutions originated expired on
June 30, 1998.
In its assailed Resolution No. 97-22, the SET explained the process in
determining the partial results, thus:
The entire process in determining the parties votes in the pilot municipalities is
explained in the corresponding written reports thereon shortly to be completed. In the
meantime, let it be stressed that the proceedings conducted by the Tribunal with
respect to the pilot areas of Protestant Pimentel consisted of several stages or steps,
to wit:
a. Recount and revision of the ballots where the parties are represented;
b. Recount and revision of the ballots where the parties are represented;
c. Examination of the different election documents including the
verification of the accuracy of the addition of the figures appearing
on Statement of Votes by Precincts (SOV/M or SOV/C); and
d. Comparison of the figures appearing on the SOV/P, the Municipal or
City Certificate of Canvass (MCOC or CCOPC), the SOV/M or
SOV/C and the Provincial Certificate of Canvass (PCOC).
From the arguments of protestee Enrile, it is apparent that only the revision of ballots
and the SOV/P were taken into account. Worse, he speculated on the rulings made
in the appreciation of ballots.
xxx
Put differently, the number of ballots objected to against a particular party is not
necessarily the maximum number of votes that may be deducted from the said party,
in the same way as the number of ballots/votes claimed by a party is not necessarily
the maximum number of votes that may be credited to said party. As a result of the
appreciation of the contested ballots, the parties may be deducted more votes than
the number of ballots specifically objected to against them, or may be credited with
additional votes even if the parties made no claims.
Aside from the ruling on the claims and objections, the Tribunal likewise verified the
accuracy of the counting of ballots done by the revision teams. Errors in the revision
reports were rectified which also resulted in the addition to, or deduction of votes
from the parties.
Consistent with the allegation of Protestant Pimentel that Operation Dagdag-Bawas
was affected through the padding or deduction of votes in the different election
56
documents, the Tribunal also conducted accuracy checks on the addition of the
figures appearing on the SOV/P and the SOV/M. The verification process disclosed
errors which have resulted in the addition or deduction of votes from the parties.
To ensure that the correct figures were recorded from one election document to the
other, the Tribunal compared the figures appearing on the SOV/P vis--vis the
MCOC/CCOC; the MCOC/CCOC with the PCOC. Where the discrepancies in the
figures were noted, the corresponding adjustments were made which resulted in the
addition or deduction of votes from the parties.
Thus, while the votes of the parties in the municipal level are determined through the
counting and appreciation of the ballots, the votes of the parties on the provincial
level are also adjusted on the basis of the comparison of the different election
documents. The written report/decision on the pilot precincts, soon to be released,
contains the specifics and sets forth in detail the reason for each addition or
deduction of votes.
The above process clearly shows why the figures presented by petitioner in his
motion do not tally with the figures released by the SET.
At any rate, we agree with the Solicitor General that the petition has become
moot and academic. The tenure of the contested senatorial position subject of this
petition expired as early as June 30, 1998.
A case becomes moot and academic when there is no more actual controversy
between the parties or no useful purpose can be served in passing upon the merits.[6]
In Garcia vs. COMELEC,[7] we held that where the issues have become moot
and academic, there is no justiciable controversy, thereby rendering the resolution of
the same of no practical use or value.
Likewise, in Gancho-on vs. Secretary of Labor and Employment,[8] we ruled:
It is a rule of universal application that courts of justice constituted to pass upon
substantial rights will not consider questions in which no actual interests are
involved; they decline jurisdiction of moot cases. And where the issue has become
moot and academic, there is no justiciable controversy, so that a declaration thereon
would be of no practical use or value. There is no actual substantial relief to which
petitioners would be entitled and which would be negated by the dismissal of the
petition.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI
BANKING CORPORATION,petitioners,
vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and
MARIANO CU UNJIENG, respondents.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance
of the writ of certiorari and of prohibition to the Court of First Instance of Manila so
that this court may review the actuations of the aforesaid Court of First Instance in
criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano
Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu
Unjieng therein for probation under the provisions of Act No. 4221, and thereafter
prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant
Mariano Cu Unjieng may be forthwith committed to prison in accordance with the
final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai
Banking Corporation, are respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case
entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal
case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this
court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh
branch of the Court of First Instance of Manila, who heard the application of the
defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First
Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai
Banking Corporation intervening in the case as private prosecutor. After a protracted
trial unparalleled in the annals of Philippine jurisprudence both in the length of time
spent by the court as well as in the volume in the testimony and the bulk of the
exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to
indeterminate penalty ranging from four years and two months of prision correccional
to eight years of prision mayor, to pay the costs and with reservation of civil action to
the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal,
the court, on March 26, 1935, modified the sentence to an indeterminate penalty of
from five years and six months of prision correccional to seven years, six months
and twenty-seven days of prision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive
motions for new trial which were denied on December 17, 1935, and final judgment
was accordingly entered on December 18, 1935. The defendant thereupon sought to
have the case elevated on certiorari to the Supreme Court of the United States but
the latter denied the petition for certiorari in November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed by the defendant for
leave to file a second alternative motion for reconsideration or new trial and
thereafter remanded the case to the court of origin for execution of the judgment.
57
The instant proceedings have to do with the application for probation filed by the
herein respondent Mariano Cu Unjieng on November 27, 1936, before the
trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature.
Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is
innocent of the crime of which he was convicted, that he has no criminal record and
that he would observe good conduct in the future. The Court of First Instance of
Manila, Judge Pedro Tuason presiding, referred the application for probation of the
Insular Probation Office which recommended denial of the same June 18, 1937.
Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O.
Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of
probation to the herein respondent Mariano Cu Unjieng. The private prosecution also
filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2 of Article XV of the Constitution,
is nevertheless violative of section 1, subsection (1), Article III of the Constitution
guaranteeing equal protection of the laws for the reason that its applicability is not
uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their
respective or otherwise in their respective provinces. The private prosecution also
filed a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to
the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City
Fiscal concurred in the opposition of the private prosecution except with respect to
the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution
with a finding that "las pruebas no han establecido de unamanera concluyente la
culpabilidad del peticionario y que todos los hechos probados no son inconsistentes
o incongrentes con su inocencia" and concludes that the herein respondent Mariano
Cu Unjieng "es inocente por duda racional" of the crime of which he stands
convicted by this court in G.R. No. 41200, but denying the latter's petition for
probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo de esta
resolucion, que hacen al peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias, podria levantarse
indignada contra un sistema de probacion que permite atisbar en los
procedimientos ordinarios de una causa criminal perturbando la quietud y la
eficacia de las decisiones ya recaidas al traer a la superficie conclusiones
enteramente differentes, en menoscabo del interes publico que demanda el
respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an
exception to the resolution denying probation and a notice of intention to file a motion
for reconsideration. An alternative motion for reconsideration or new trial was filed by
counsel on July 13, 1937. This was supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The aforesaid motions were set for
hearing on July 31, 1937, but said hearing was postponed at the petition of counsel
for the respondent Mariano Cu Unjieng because a motion for leave to intervene in
the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been
filed with the trial court. Attorney Eulalio Chaves whose signature appears in the
aforesaid motion subsequently filed a petition for leave to withdraw his appearance
as amicus curiae on the ground that the motion for leave to intervene as amici
curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the
evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court
for the issuance of an order of execution of the judgment of this court in said case
and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in
obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave
to intervene as amici curiae aforementioned, asking that a date be set for a hearing
of the same and that, at all events, said motion should be denied with respect to
certain attorneys signing the same who were members of the legal staff of the
several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent
Judge Jose O. Vera issued an order requiring all parties including the movants for
intervention as amici curiae to appear before the court on August 14, 1937. On the
last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his
motion for execution of judgment in preference to the motion for leave to intervene
as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for
the postponement of the hearing of both motions. The respondent judge thereupon
set the hearing of the motion for execution on August 21, 1937, but proceeded to
consider the motion for leave to intervene as amici curiae as in order. Evidence as to
the circumstances under which said motion for leave to intervene as amici
curiae was signed and submitted to court was to have been heard on August 19,
1937. But at this juncture, herein petitioners came to this court on extraordinary legal
process to put an end to what they alleged was an interminable proceeding in the
Court of First Instance of Manila which fostered "the campaign of the defendant
Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because of the
apparent inability of the judicial machinery to make effective a final judgment of this
court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the
issuance of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and
prohibition, herein petitioners allege that the respondent judge has acted without
jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu
Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine
Legislature is made to apply only to the provinces of the
Philippines; it nowhere states that it is to be made applicable to
chartered cities like the City of Manila.
58
 (2) While section 37 of the Administrative Code contains a proviso
to the effect that in the absence of a special provision, the term
"province" may be construed to include the City of Manila for the
purpose of giving effect to laws of general application, it is also
true that Act No. 4221 is not a law of general application because it
is made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation
officer.
(3) Even if the City of Manila were considered to be a province,
still, Act No. 4221 would not be applicable to it because it has
provided for the salary of a probation officer as required by section
11 thereof; it being immaterial that there is an Insular Probation
Officer willing to act for the City of Manila, said Probation Officer
provided for in section 10 of Act No. 4221 being different and
distinct from the Probation Officer provided for in section 11 of the
same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the
application for probation of the respondent Mariano Cu Unjieng, he nevertheless
acted without jurisdiction or in excess thereof in continuing to entertain the motion for
reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's
application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited
by Act No. 4221 to the granting or denying of applications for
probation.
(2) After he had issued the order denying Mariano Cu Unjieng's
petition for probation on June 28, 1937, it became final and
executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of
said order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by final judgment of this court,
which finding is not only presumptuous but without foundation in fact and in law, and
is furthermore in contempt of this court and a violation of the respondent's oath of
office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty,
which became imperative when he issued his order of June 28, 1937, denying the
application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in
the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and
Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine
Legislature providing for a system of probation for persons eighteen years of age or
over who are convicted of crime, is unconstitutional because it is violative of section
1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the provincial board of its province the
absolute discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the
provincial boards of the several provinces of the legislative power lodged by the
Jones Law (section 8) in the Philippine Legislature and by the Constitution (section
1, Art. VI) in the National Assembly; and for the further reason that it gives the
provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the
Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition
dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the
petitioners, the People of the Philippine Islands, concurs for the first time with the
issues raised by other petitioner regarding the constitutionality of Act No. 4221, and
on the oral argument held on October 6, 1937, further elaborated on the theory that
probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on
the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that
Act No. 4221 not only encroaches upon the pardoning power to the executive, but
also constitute an unwarranted delegation of legislative power and a denial of the
equal protection of the laws. On October 9, 1937, two memorandums, signed jointly
by the City Fiscal and the Solicitor-General, acting in behalf of the People of the
Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of
its own laws and the other contending that Act No. 4221 constitutes an unwarranted
delegation of legislative power, were presented. Another joint memorandum was filed
by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is
unconstitutional because it denies the equal protection of the laws and constitutes an
unlawful delegation of legislative power and, further, that the whole Act is void: that
the Commonwealth is not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and may attack the
probation law as unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.
(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.
59
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court
of First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance
has assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive
the trial court of its jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory
for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion
the trial court was able to resolve in view of the restraining order improvidently and
erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when he
presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is
not appealable, it is incumbent upon the accused to file an action for the issuance of
the writ of certiorari with mandamus, it appearing that the trial court, although it
believed that the accused was entitled to probation, nevertheless denied probation
for fear of criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter case taking the form of a motion
for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation will
be closed from the moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents
maintain that Act No. 4221 is constitutional because, contrary to the allegations of
the petitioners, it does not constitute an undue delegation of legislative power, does
not infringe the equal protection clause of the Constitution, and does not encroach
upon the pardoning power of the Executive. In an additional memorandum filed on
the same date, counsel for the respondents reiterate the view that section 11 of Act
No. 4221 is free from constitutional objections and contend, in addition, that the
private prosecution may not intervene in probation proceedings, much less question
the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are
estopped from questioning the validity of the Act; that the validity of Act cannot be
attacked for the first time before this court; that probation in unavailable; and that, in
any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The
last memorandum for the respondent Mariano Cu Unjieng was denied for having
been filed out of time but was admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of the points raised by
the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present
case, we noted that the court below, in passing upon the merits of the application of
the respondent Mariano Cu Unjieng and in denying said application assumed the
task not only of considering the merits of the application, but of passing upon the
culpability of the applicant, notwithstanding the final pronouncement of guilt by this
court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation
case may look into the circumstances attending the commission of the offense, this
does not authorize it to reverse the findings and conclusive of this court, either
directly or indirectly, especially wherefrom its own admission reliance was merely
had on the printed briefs, averments, and pleadings of the parties. As already
observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated
in subsequent cases, "if each and every Court of First Instance could enjoy the
privilege of overruling decisions of the Supreme Court, there would be no end to
litigation, and judicial chaos would result." A becoming modesty of inferior courts
demands conscious realization of the position that they occupy in the interrelation
and operation of the intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the
petitioners and the respondents, this court prefers to cut the Gordian knot and take
up at once the two fundamental questions presented, namely, (1) whether or not the
constitutionality of Act No. 4221 has been properly raised in these proceedings; and
(2) in the affirmative, whether or not said Act is constitutional. Considerations of
these issues will involve a discussion of certain incidental questions raised by the
parties.
To arrive at a correct conclusion on the first question, resort to certain guiding
principles is necessary. It is a well-settled rule that the constitutionality of an act of
the legislature will not be determined by the courts unless that question is properly
raised and presented inappropriate cases and is necessary to a determination of the
case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr
vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp.
780-782, 783.)
60
The question of the constitutionality of an act of the legislature is frequently raised in
ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies,
particularly where the remedies in the ordinary course of law even if available, are
not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil.,
818), this court held that the question of the constitutionality of a statute may be
raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and
in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed
in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law.
ed., 845]), this court declared an act of the legislature unconstitutional in an action
of quo warranto brought in the name of the Government of the Philippines. It has
also been held that the constitutionality of a statute may be questioned in habeas
corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on an application for injunction to
restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg
[1931], 56 Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case.
(12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu
Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,
1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A.
S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu
Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of
Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there
challenged by the petitioners, and the constitutional issue was not met squarely by
the respondent in a demurrer. A point was raised "relating to the propriety of the
constitutional question being decided in original proceedings in prohibition." This
court decided to take up the constitutional question and, with two justices dissenting,
held that Act No. 2972 was constitutional. The case was elevated on writ
of certiorari to the Supreme Court of the United States which reversed the judgment
of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.)
On the question of jurisdiction, however, the Federal Supreme Court, though its
Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the
Philippine supreme court is granted concurrent jurisdiction in prohibition
with courts of first instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such courts are exercising
functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be
raised by a defendant in the trial court and be carried regularly in review to
the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a multiplicity
of actions, the Supreme Court exercised its discretion to bring the issue to
the act's validity promptly before it and decide in the interest of the orderly
administration of justice. The court relied by analogy upon the cases of Ex
parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28
Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60
Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B,
283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E,
938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to
the jurisdiction was raise by demurrer to the petition, this is now disclaimed
on behalf of the respondents, and both parties ask a decision on the merits.
In view of the broad powers in prohibition granted to that court under the
Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a
conflict in the cases, is that the merit of prohibition will not lie whether the inferior
court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself
determine the constitutionality of the statute, and its decision may be subject to
review, and consequently the complainant in such cases ordinarily has adequate
remedy by appeal without resort to the writ of prohibition. But where the inferior court
or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may
be prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex
parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13;
State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5
Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction
solely from Act No. 4221 which prescribes in detailed manner the procedure for
granting probation to accused persons after their conviction has become final and
before they have served their sentence. It is true that at common law the authority of
the courts to suspend temporarily the execution of the sentence is recognized and,
according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs.
Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557;
121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed
the opinion that under the common law the power of the court was limited to
temporary suspension, and brushed aside the contention as to inherent judicial
power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses against
the criminal laws and upon conviction to impose the punishment provided
by law is judicial, and it is equally to be conceded that, in exerting the
powers vested in them on such subject, courts inherently possess ample
right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the
contention as to power here made, since it must rest upon the proposition
that the power to enforce begets inherently a discretion to permanently
refuse to do so. And the effect of the proposition urged upon the distribution
of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in advance to bring
within judicial discretion, for the purpose of executing the statute, elements
61
 of consideration which would be otherwise beyond the scope of judicial
authority, and that the right to relieve from the punishment, fixed by law and
ascertained according to the methods by it provided belongs to the
executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of
Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in
1915, also reached the conclusion that the power to suspend the execution of
sentences pronounced in criminal cases is not inherent in the judicial function. "All
are agreed", he said, "that in the absence of statutory authority, it does not lie within
the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance
sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on
application for prohibition where the question has not been properly brought to the
attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592;
30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the
case at bar, it is unquestionable that the constitutional issue has been squarely
presented not only before this court by the petitioners but also before the trial court
by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as
judge of the court below, declined to pass upon the question on the ground that the
private prosecutor, not being a party whose rights are affected by the statute, may
not raise said question. The respondent judge cited Cooley on Constitutional
Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs.
Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a
statute by one who has no interest in defeating it because his rights are not affected
by its operation. The respondent judge further stated that it may not motu
proprio take up the constitutional question and, agreeing with Cooley that "the power
to declare a legislative enactment void is one which the judge, conscious of the
fallibility of the human judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While therefore, the court a
quo admits that the constitutional question was raised before it, it refused to consider
the question solely because it was not raised by a proper party. Respondents herein
reiterates this view. The argument is advanced that the private prosecution has no
personality to appear in the hearing of the application for probation of defendant
Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of
Manila, and hence the issue of constitutionality was not properly raised in the lower
court. Although, as a general rule, only those who are parties to a suit may question
the constitutionality of a statute involved in a judicial decision, it has been held that
since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of
the constitutionality will be considered on its being brought to the attention of the
court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p.
766.) And, even if we were to concede that the issue was not properly raised in the
court below by the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibitions. It is true that, as a general
rule, the question of constitutionality must be raised at the earliest opportunity, so
that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if
not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See,
also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But
we must state that the general rule admits of exceptions. Courts, in the exercise of
sounds discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y.,
135, 144.) Thus, in criminal cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for the first time at any stage of
the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil
cases, it has been held that it is the duty of a court to pass on the constitutional
question, though raised for the first time on appeal, if it appears that a determination
of the question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St.
Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis
Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it
involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57
S., 870.) As to the power of this court to consider the constitutional question raised
for the first time before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses
that the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here — a
point we do not now have to decide — we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila,
is such a proper party in the present proceedings. The unchallenged 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. It goes without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the present action is
brought, has a substantial interest in having it set aside. Of grater 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. Hence,
the well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law.
ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo warranto proceedings to test
the right of the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law officer of the state
to question the constitutionality of the statute was though, as a general rule, only
those who are parties to a suit may question the constitutionality of a statute involved
in a judicial decision, it has been held that since the decree pronounced by a court
without jurisdiction in void, where the jurisdiction of the court depends on the validity
of the statute in question, the issue of constitutionality will be considered on its being
brought to the attention of the court by persons interested in the effect to begin the
statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue
62
was not properly raised in the court below by the proper party, it does not follow that
the issue may not be here raised in an original action of certiorari and prohibition. It
is true that, as a general rule, the question of constitutionality must be raised at the
earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be
raised a the trial, and if not raised in the trial court, it will not be considered on
appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions.
Courts, in the exercise of sound discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey
[19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for the first time at
any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.)
Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's
Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer
vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St.
Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it
involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57
S., 870.) As to the power of this court to consider the constitutional question raised
for the first time before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis
that the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here — a
point we do not now have to decide — we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila,
is such a proper party in the present proceedings. The unchallenged 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 sustain, direct injury as a
result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is
brought, has a substantial interest in having it set aside. 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. Hence,
the well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law.
ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo warranto proceedings to test
the right of the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law officer of the state
to question the constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning
the validity of a law enacted by their representatives; that to an accusation
by the people of Michigan of usurpation their government, a statute enacted
by the people of Michigan is an adequate answer. The last proposition is
true, but, if the statute relied on in justification is unconstitutional, it is
statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The
constitution is the supreme law, and to its behests the courts, the
legislature, and the people must bow . . . The legislature and the
respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the
legislature: "The people have a deep and vested interest in maintaining all
the constitutional limitations upon the exercise of legislative powers." (Allen
vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the
constitutionality of a statute of the state. In disposing of the question whether or not
the state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party — indeed, the proper party — to bring this
action. The state is always interested where the integrity of its Constitution
or statutes is involved.
"It has an interest in seeing that the will of the Legislature
is not disregarded, and need not, as an individual plaintiff
must, show grounds of fearing more specific injury. (State
vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its
Attorney-General, or county attorney, may exercise his bet judgment as to
what sort of action he will bring to have the matter determined, either by
quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60
Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms
(State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of
Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry.
Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State
vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's
[1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y.,
295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs.
Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme
Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being
charged with the duty of enforcing the laws, has no right to plead that a law
is unconstitutional. In support of the argument three decisions are cited,
viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District
(33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel.,
Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L.
R. A., 512). These decisions do not forbid a district attorney to plead that a
63
 statute is unconstitutional if he finds if in conflict with one which it is his duty
to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling
was the judge should not, merely because he believed a certain statute to
be unconstitutional forbid the district attorney to file a bill of information
charging a person with a violation of the statute. In other words, a judge
should not judicially declare a statute unconstitutional until the question of
constitutionality is tendered for decision, and unless it must be decided in
order to determine the right of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an officer on
whom a statute imposes the duty of enforcing its provisions cannot avoid
the duty upon the ground that he considers the statute unconstitutional, and
hence in enforcing the statute he is immune from responsibility if the statute
be unconstitutional. State ex rel. Banking Co., etc., is authority for the
proposition merely that executive officers, e.g., the state auditor and state
treasurer, should not decline to perform ministerial duties imposed upon
them by a statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state,
and, above all, to support the Constitution of the state. If, in the
performance of his duty he finds two statutes in conflict with each other, or
one which repeals another, and if, in his judgment, one of the two statutes is
unconstitutional, it is his duty to enforce the other; and, in order to do so, he
is compelled to submit to the court, by way of a plea, that one of the
statutes is unconstitutional. If it were not so, the power of the Legislature
would be free from constitutional limitations in the enactment of criminal
laws.
The respondents do not seem to doubt seriously the correctness of the general
proposition that the state may impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as stated is sound but that it has no
application in the present case, nor may it be invoked by the City Fiscal in behalf of
the People of the Philippines, one of the petitioners herein, the principal reasons
being that the validity before this court, that the City Fiscal is estopped from attacking
the validity of the Act and, not authorized challenge the validity of the Act in its
application outside said city. (Additional memorandum of respondents, October 23,
1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and
all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on
the contrary, has been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor assailing its validity. For
courts will pass upon a constitutional questions only when presented before it
in bona fide cases for determination, and the fact that the question has not been
raised before is not a valid reason for refusing to allow it to be raised later. The fiscal
and all others are justified in relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No.
4221 is necessary to the resolution of the instant case. For, ". . . while the court will
meet the question with firmness, where its decision is indispensable, it is the part of
wisdom, and just respect for the legislature, renders it proper, to waive it, if the case
in which it arises, can be decided on other points." It has been held that the
determination of a constitutional question is necessary whenever it is essential to the
decision of the case as where the right of a party is founded solely on a statute the
validity of which is attacked. (There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the
fact that the Probation Act is a new addition to our statute books and its validity has
never before been passed upon by the courts; that may persons accused and
convicted of crime in the City of Manila have applied for probation; that some of them
are already on probation; that more people will likely take advantage of the Probation
Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a
period of about four years since his first conviction. All wait the decision of this court
on the constitutional question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of suits, strong reasons of
public policy demand that the constitutionality of Act No. 4221 be now resolved.
In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said:
"Inasmuch as the property and personal rights of nearly twelve thousand merchants
are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not
yet interpreted by the courts, in the interest of the public welfare and for the
advancement of public policy, we have determined to overrule the defense of want of
jurisdiction in order that we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the general rule." Our ruling on
this point was sustained by the Supreme Court of the United States. A more binding
authority in support of the view we have taken cannot be found.
We have reached the conclusion that the question of the constitutionality of Act No.
4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to
enforce the Constitution. This court, by clear implication from the provisions of
section 2, subsection 1, and section 10, of Article VIII of the Constitution, may
declare an act of the national legislature invalid because in conflict with the
fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And,
in clear cases, it will not hesitate to give effect to the supreme law by setting aside a
statute in conflict therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute. An
act of the legislature approved by the executive is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not on
the courts alone but on the legislature as well. "The question of the validity of every
statute is first determined by the legislative department of the government itself." And
a statute finally comes before the courts sustained by the sanction of the executive.
The members of the Legislature and the Chief Executive have taken an oath to
support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to
violate the Constitution. The courts cannot but cautiously exercise its power to
64
overturn the solemn declarations of two of the three grand departments of the
governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy
which bids the judiciary to reflect the wisdom of the people as expressed through an
elective Legislature and an elective Chief Executive. It follows, therefore, that the
courts will not set aside a law as violative of the Constitution except in a clear case.
This is a proposition too plain to require a citation of authorities.
One of the counsels for respondents, in the course of his impassioned argument,
called attention to the fact that the President of the Philippines had already
expressed his opinion against the constitutionality of the Probation Act, adverting that
as to the Executive the resolution of this question was a foregone conclusion.
Counsel, however, reiterated his confidence in the integrity and independence of this
court. We take notice of the fact that the President in his message dated September
1, 1937, recommended to the National Assembly the immediate repeal of the
Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417
of the Nationality Assembly repealing the probation Act, subject to certain conditions
therein mentioned; but that said bill was vetoed by the President on September 13,
1937, much against his wish, "to have stricken out from the statute books of the
Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to
observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem
proper for taking such a step, but his reasons are not binding upon us in the
determination of actual controversies submitted for our determination. Whether or
not the Executive should express or in any manner insinuate his opinion on a matter
encompassed within his broad constitutional power of veto but which happens to be
at the same time pending determination in this court is a question of propriety for him
exclusively to decide or determine. Whatever opinion is expressed by him under
these circumstances, however, cannot sway our judgment on way or another and
prevent us from taking what in our opinion is the proper course of action to take in a
given case. It if is ever necessary for us to make any vehement affirmance during
this formative period of our political history, it is that we are independent of the
Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration,
free from politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1)
That said Act encroaches upon the pardoning power of the Executive; (2) that its
constitutes an undue delegation of legislative power and (3) that it denies the equal
protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the
Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as
the Probation Act, vests in the Governor-General of the Philippines "the exclusive
power to grant pardons and reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The
provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution.
Under the Jones Law, as at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction (Vide Constitution of the
United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-
General of the Philippines was thus empowered, like the President of the United
States, to pardon a person before the facts of the case were fully brought to light.
The framers of our Constitution thought this undesirable and, following most of the
state constitutions, provided that the pardoning power can only be exercised "after
conviction". So, too, under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule generally followed in the
United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in
England is different. There, a royal pardon cannot be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further
restrained or abridged. “The reason for the distinction is obvious. In England,
Judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the
whole punishment attached by law to the offense committed. The House of Lords, on
a conviction may, by its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the gravity of the
offense committed, together with removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons he may
grant, such conditions, restrictions and limitations as he may deem proper. Amnesty
may be granted by the President under the Constitution but only with the
concurrence of the National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is sufficient for our purposes to state
that the pardoning power has remained essentially the same. The question is: Has
the pardoning power of the Chief Executive under the Jones Law been impaired by
the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief
Executive. The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away
nor fettered by any legislative restrictions, nor can like power be given by the
legislature to any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power, since no person properly
belonging to one of the departments can exercise any powers appertaining to either
of the others except in cases expressly provided for by the constitution." (20 R.C.L.,
pp., , and cases cited.) " . . . where the pardoning power is conferred on the
executive without express or implied limitations, the grant is exclusive, and the
legislature can neither exercise such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and
cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court
of the United States ruled in 1916 that an order indefinitely suspending sentenced
was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A.
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after
an exhaustive review of the authorities, expressed the opinion of the court that under
the common law the power of the court was limited to temporary suspension and that
65
the right to suspend sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary. But, the right of
Congress to establish probation by statute was conceded. Said the court through its
Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation legislation or such other
means as the legislative mind may devise, to such judicial discretion as may be
adequate to enable courts to meet by the exercise of an enlarged but wise discretion
the infinite variations which may be presented to them for judgment, recourse must
be had Congress whose legislative power on the subject is in the very nature of
things adequately complete." (This decision led the National Probation Association
and others to agitate for the enactment by Congress of a federal probation law. Such
action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18,
sec. 724). This was followed by an appropriation to defray the salaries and expenses
of a certain number of probation officers chosen by civil service.
In United States vs. Murray, the Supreme Court of the United States, through Chief
Justice Taft, held that when a person sentenced to imprisonment by a district court
has begun to serve his sentence, that court has no power under the Probation Act of
March 4, 1925 to grant him probation even though the term at which sentence was
imposed had not yet expired. In this case of Murray, the constitutionality of the
probation Act was not considered but was assumed. The court traced the history of
the Act and quoted from the report of the Committee on the Judiciary of the United
States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the
following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district
courts exercised a form of probation either, by suspending sentence or by
placing the defendants under state probation officers or volunteers. In this
case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A.,
1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme
Court denied the right of the district courts to suspend sentenced. In the
same opinion the court pointed out the necessity for action by Congress if
the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact
probation legislation. In 1917, a bill was favorably reported by the Judiciary
Committee and passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was never reached
for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of violations
of its criminal laws in harmony with that of the states of the Union. At the
present time every state has a probation law, and in all but twelve states the
law applies both to adult and juvenile offenders. (see, also, Johnson,
Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior
federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the
Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions
under consideration have been reviewed by the Circuit Court of Appeals of
the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully
sustained, and the same held in no manner to encroach upon the pardoning
power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we
have to consider, and to it and the authorities cited therein special reference
is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the
Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d],
762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and
unequivocal language, pointed to Congress as possessing the requisite power to
enact probation laws, that a federal probation law as actually enacted in 1925, and
that the constitutionality of the Act has been assumed by the Supreme Court of the
United States in 1928 and consistently sustained by the inferior federal courts in a
number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the
United States, may legally enact a probation law under its broad power to fix the
punishment of any and all penal offenses. This conclusion is supported by other
authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac.,
698, the court said: "It is clearly within the province of the Legislature to denominate
and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott the court said: "The legislative power to set
punishment for crime is very broad, and in the exercise of this power the general
assembly may confer on trial judges, if it sees fit, the largest discretion as to the
sentence to be imposed, as to the beginning and end of the punishment and whether
it should be certain or indeterminate or conditional. “Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for their violation.
Invariably, the legislature has demonstrated the desire to vest in the courts —
particularly the trial courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by
vesting this power in the courts, they being in a position to best determine the
penalties which an individual convict, peculiarly circumstanced, should suffer. Thus,
while courts are not allowed to refrain from imposing a sentence merely because,
taking into consideration the degree of malice and the injury caused by the offense,
the penalty provided by law is clearly excessive, the courts being allowed in such
case to submit to the Chief Executive, through the Department of Justice, such
statement as it may deem proper (see art. 5, Revised Penal Code), in cases where
both mitigating and aggravating circumstances are attendant in the commission of a
crime and the law provides for a penalty composed of two indivisible penalties, the
courts may allow such circumstances to offset one another in consideration of their
number and importance, and to apply the penalty according to the result of such
compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each periods, in case the
penalty prescribed by law contains three periods, the extent of the evil produced by
the crime. In the imposition of fines, the courts are allowed to fix any amount within
the limits established by law, considering not only the mitigating and aggravating
circumstances, but more particularly the wealth or means of the culprit. (Art. 66,
Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a
66
discretionary penalty shall be imposed" upon a person under fifteen but over nine
years of age, who has not acted without discernment, but always lower by two
degrees at least than that prescribed by law for the crime which he has committed.
Article 69 of the same Code provides that in case of "incomplete self-defense", i.e.,
when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the
several cases mentioned in article 11 and 12 of the Code, "the courts shall impose
the penalty in the period which may be deemed proper, in view of the number and
nature of the conditions of exemption present or lacking." And, in case the
commission of what are known as "impossible" crimes, "the court, having in mind the
social danger and the degree of criminality shown by the offender," shall impose
upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59,
Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive
imprisonment is deducted form the entire term of imprisonment, except in certain
cases expressly mentioned (art. 29); the death penalty is not imposed when the
guilty person is more than seventy years of age, or where upon appeal or revision of
the case by the Supreme Court, all the members thereof are not unanimous in their
voting as to the propriety of the imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3);
the death sentence is not to be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant, or upon any person over
seventy years of age (art. 83); and when a convict shall become insane or an
imbecile after final sentence has been pronounced, or while he is serving his
sentenced, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of
the penal laws is more clearly demonstrated in various other enactments, including
the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act
No. 4103 and subsequently amended by Act No. 4225, establishing a system of
parole (secs. 5 to 100 and granting the courts large discretion in imposing the
penalties of the law. Section 1 of the law as amended provides; "hereafter, in
imposing a prison sentence for an offenses punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and to a
minimum which shall be within the range of the penalty next lower to that prescribed
by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same." Certain classes of convicts
are, by section 2 of the law, excluded from the operation thereof. The Legislature has
also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently
amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended by Act
No. 4117 of the Philippine Legislature and recently reamended by Commonwealth
Act No. 99 of the National Assembly. In this Act is again manifested the intention of
the legislature to "humanize" the penal laws. It allows, in effect, the modification in
particular cases of the penalties prescribed by law by permitting the suspension of
the execution of the judgment in the discretion of the trial court, after due hearing
and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality
decreed that in certain cases no punishment at all shall be suffered by the convict as
long as the conditions of probation are faithfully observed. It this be so, then, it
cannot be said that the Probation Act comes in conflict with the power of the Chief
Executive to grant pardons and reprieves, because, to use the language of the
Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function
under and within the limits of law as announced by legislative acts, concerns solely
the procedure and conduct of criminal causes, with which the executive can have
nothing to do." (Ex parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327;
133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute
against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to
pardon after final sentence has been imposed by the courts, the power of the courts
to imposed any penalty which may be from time to time prescribed by law and in
such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some cases
hold it unlawful for the legislature to vest in the courts the power to suspend the
operation of a sentenced, by probation or otherwise, as to do so would encroach
upon the pardoning power of the executive.
We elect to follow this long catena of authorities holding that the courts may be
legally authorized by the legislature to suspend sentence by the establishment of a
system of probation however characterized. State ex rel. Tingstand vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular
mention. In that case, a statute enacted in 1921 which provided for the suspension of
the execution of a sentence until otherwise ordered by the court, and required that
the convicted person be placed under the charge of a parole or peace officer during
the term of such suspension, on such terms as the court may determine, was held
constitutional and as not giving the court a power in violation of the constitutional
provision vesting the pardoning power in the chief executive of the state.
Probation and pardon are not coterminous; nor are they the same. They are actually
district and different from each other, both in origin and in nature. In People ex rel.
Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L.
R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and
pardons, as understood when the constitution was adopted, are totally
distinct and different in their nature. The former was always a part of the
judicial power; the latter was always a part of the executive power. The
suspension of the sentence simply postpones the judgment of the court
temporarily or indefinitely, but the conviction and liability following it, and the
civil disabilities, remain and become operative when judgment is rendered.
A pardon reaches both the punishment prescribed for the offense and the
guilt of the offender. It releases the punishment, and blots out of existence
the guilt, so that in the eye of the law, the offender is as innocent as if he
67
 had never committed the offense. It removes the penalties and disabilities,
and restores him to all his civil rights. It makes him, as it were, a new man,
and gives him a new credit and capacity.
The framers of the federal and the state constitutions were perfectly familiar
with the principles governing the power to grant pardons, and it was
conferred by these instruments upon the executive with full knowledge of
the law upon the subject, and the words of the constitution were used to
express the authority formerly exercised by the English crown, or by its
representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15
Law. ed., 421.) As this power was understood, it did not comprehend any
part of the judicial functions to suspend sentence, and it was never intended
that the authority to grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its own judgments,
that criminal courts has so long maintained. The two powers, so distinct and
different in their nature and character, were still left separate and distinct,
the one to be exercised by the executive, and the other by the judicial
department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain
cases after conviction, — a power inherent in such courts at common law,
which was understood when the constitution was adopted to be an ordinary
judicial function, and which, ever since its adoption, has been exercised of
legislative power under the constitution. It does not encroach, in any just
sense, upon the powers of the executive, as they have been understood
and practiced from the earliest times.
In probation, the probationer is in no true sense, as in pardon, a free man. He is not
finally and completely exonerated. He is not exempt from the entire punishment
which the law inflicts. Under the Probation Act, the probationer's case is not
terminated by the mere fact that he is placed on probation. Section 4 of the Act
provides that the probation may be definitely terminated and the probationer finally
discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court
shall have found that the probationer has complied with the conditions of probation.
The probationer, then, during the period of probation, remains in legal custody —
subject to the control of the probation officer and of the court; and, he may be
rearrested upon the non-fulfillment of the conditions of probation and, when
rearrested, may be committed to prison to serve the sentence originally imposed
upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty,
and may be far from it. It is really a new mode of punishment, to be applied
by the judge in a proper case, in substitution of the imprisonment and find
prescribed by the criminal laws. For this reason its application is as purely a
judicial act as any other sentence carrying out the law deemed applicable to
the offense. The executive act of pardon, on the contrary, is against the
criminal law, which binds and directs the judges, or rather is outside of and
above it. There is thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause. (Archer vs. Snook
[1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the
sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.],
1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in
support of their contention that the power to grant pardons and reprieves, having
been vested exclusively upon the Chief Executive by the Jones Law, may not be
conferred by the legislature upon the courts by means of probation law authorizing
the indefinite judicial suspension of sentence. We have examined that case and
found that although the Court of Criminal Appeals of Texas held that the probation
statute of the state in terms conferred on the district courts the power to grant
pardons to persons convicted of crime, it also distinguished between suspensions
sentence on the one hand, and reprieve and commutation of sentence on the other.
Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of
the Governor to grant reprieves is settled by the decisions of the various
courts; it being held that the distinction between a "reprieve" and a
suspension of sentence is that a reprieve postpones the execution of the
sentence to a day certain, whereas a suspension is for an indefinite time.
(Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264;
40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This
law cannot be hold in conflict with the power confiding in the Governor to
grant commutations of punishment, for a commutations is not but to change
the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525),
the Supreme Court of Montana had under consideration the validity of the adult
probation law of the state enacted in 1913, now found in sections 12078-12086,
Revised Codes of 1921. The court held the law valid as not impinging upon the
pardoning power of the executive. In a unanimous decision penned by Justice
Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well
understood meaning at the time our Constitution was adopted, and no one
of them was intended to comprehend the suspension of the execution of the
judgment as that phrase is employed in sections 12078-12086. A "pardon"
is an act of grace, proceeding from the power intrusted with the execution of
the laws which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed (United States vs.
Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs.
Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs.
Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am.
Rep., 71). "Commutation" is a remission of a part of the punishment; a
substitution of a less penalty for the one originally imposed (Lee vs. Murphy,
22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381;
65 N. W., 235). A "reprieve" or "respite" is the withholding of the sentence
for an interval of time (4 Blackstone's Commentaries, 394), a postponement
of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute
similar to our section 12078 has been determined; but the same objections
have been urged against parole statutes which vest the power to parole in
persons other than those to whom the power of pardon is granted, and
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 these statutes have been upheld quite uniformly, as a reference to the
numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169
S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R.
C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the
Executive. The pardoning power, in respect to those serving their probationary
sentences, remains as full and complete as if the Probation Law had never been
enacted. The President may yet pardon the probationer and thus place it beyond the
power of the court to order his rearrest and imprisonment.
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among
three coordinate and substantially independent organs: the legislative, the executive
and the judicial. Each of these departments of the government derives its authority
from the Constitution which, in turn, is the highest expression of popular will. Each
has exclusive cognizance of the matters within its jurisdiction, and is supreme within
its own sphere.
The power to make laws — the legislative power — is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the
Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not escape its duties and responsibilities
by delegating that power to any other body or authority. Any attempt to abdicate the
power is unconstitutional and void, on the principle that potestas delegata non
delegare potest. This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, there developed as a
principle of agency, was established by Lord Coke in the English public law in
decisions forbidding the delegation of judicial power, and found its way into America
as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p.
66.) The classic statement of the rule is that of Locke, namely: "The legislative
neither must nor can transfer the power of making laws to anybody else, or place it
anywhere but where the people have." Judge Cooley enunciates the doctrine in the
following oft-quoted language: "One of the settled maxims in constitutional law is,
that the power conferred upon the legislature to make laws cannot be delegated by
that department to any other body or authority. Where the sovereign power of the
state has located the authority, there it must remain; and by the constitutional agency
alone the laws must be made until the Constitution itself is charged. The power to
whose judgment, wisdom, and patriotism this high prerogative has been intrusted
cannot relieve itself of the responsibilities by choosing other agencies upon which
the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit to
confide this sovereign trust." (This court posits the doctrine "on the ethical principle
that such a delegated power constitutes not only a right but a duty to be performed
by the delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another.
The rule, however, which forbids the delegation of legislative power is not absolute
and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial
practice permits the central legislative body to delegate legislative powers to local
authorities. "It is a cardinal principle of our system of government, that local affairs
shall be managed by local authorities, and general affairs by the central authorities;
and hence while the rule is also fundamental that the power to make laws cannot be
delegated, the creation of the municipalities exercising local self-government has
never been held to trench upon that rule. Such legislation is not regarded as a
transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to
the interposition of the superior in cases of necessity." On quite the same principle,
Congress is powered to delegate legislative power to such agencies in the territories
of the United States as it may select. A territory stands in the same relation to
Congress as a municipality or city to the state government. Courts have also
sustained the delegation of legislative power to the people at large. Some authorities
maintain that this may not be done. However, the question of whether or not a state
has ceased to be republican in form because of its adoption of the initiative and
referendum has been held not to be a judicial but a political question and as the
constitutionality of such laws has been looked upon with favor by certain progressive
courts, the sting of the decisions of the more conservative courts has been pretty
well drawn. Doubtless, also, legislative power may be delegated by the Constitution
itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines
provides that "The National Assembly may by law authorize the President, subject to
such limitations and restrictions as it may impose, to fix within specified limits, tariff
rates, import or export quotas, and tonnage and wharf age dues." And section 16 of
the same article of the Constitution provides that "In times of war or other national
emergency, the National Assembly may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribed, to promulgate rules and
regulations to carry out a declared national policy." It is beyond the scope of this
decision to determine whether or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise the powers thereby vested
in him. Upon the other hand, whatever doubt may have existed has been removed
by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at rates
not lower than those now provided for provincial fiscals. Said probation
officer shall be appointed by the Secretary of Justice and shall be subject to
the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or
not, it is usual to inquire whether the statute was complete in all its terms and
provisions when it left the hands of the legislature so that nothing was left to the
judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In
the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the
foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the
69
price of rice and to make the sale of it in violation of the proclamation a crime.
general rule, however, is limited by another rule that to a certain extent matters of
detail may be left to be filled in by rules and regulations to be adopted or
promulgated by executive officers and administrative boards.
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should take
effect in their respective provinces. They are the agents or delegates of the
legislature in this respect. The rules governing delegation of legislative power to
administrative and executive officers are applicable or are at least indicative of the
rule which should be here adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show that the ratio decidendi is at
variance but, it can be broadly asserted that the rationale revolves around the
presence or absence of a standard or rule of action — or the sufficiency thereof — in
the statute, to aid the delegate in exercising the granted discretion. In some cases, it
is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence
invalid if it does not lay down any rule or definite standard by which the
administrative officer or board may be guided in the exercise of the discretionary
powers delegated to it. In the case at bar, what rules are to guide the provincial
boards in the exercise of their discretionary power to determine whether or not the
Probation Act shall apply in their respective provinces? What standards are fixed by
the Act? We do not find any and none has been pointed to us by the respondents.
The probation Act does not, by the force of any of its provisions, fix and impose upon
the provincial boards any standard or guide in the exercise of their discretionary
power. What is granted, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the provincial
boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does
not seemingly on its own authority extend the benefits of the Probation Act to the
provinces but in reality leaves the entire matter for the various provincial boards to
determine. In other words, the provincial boards of the various provinces are to
determine for themselves, whether the Probation Law shall apply to their provinces
or not at all. The applicability and application of the Probation Act are entirely placed
in the hands of the provincial boards. If the provincial board does not wish to have
the Act applied in its province, all that it has to do is to decline to appropriate the
needed amount for the salary of a probation officer. The plain language of the Act is
not susceptible of any other interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to
make the law, which necessarily involves a discretion as to what it shall be, and
conferring an authority or discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no valid objection can be
made." In the first of these cases, this court sustained the validity of the law
conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct
non-Christian inhabitants to take up their habitation on unoccupied lands to be
selected by the provincial governor and approved by the provincial board. In the third
case, it was held proper for the legislature to vest in the Governor-General authority
to suspend or not, at his discretion, the prohibition of the importation of the foreign
cattle, such prohibition to be raised "if the conditions of the country make this
advisable or if deceased among foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple
transference of details of execution or the promulgation by executive or
administrative officials of rules and regulations to carry into effect the provisions of a
law. If we were, recurrence to our own decisions would be sufficient.
It is connected, however, that a legislative act may be made to the effect as law after
it leaves the hands of the legislature. It is true that laws may be made effective on
certain contingencies, as by proclamation of the executive or the adoption by the
people of a particular community, the Supreme Court of the United State ruled that
the legislature may delegate a power not legislative which it may itself rightfully
exercise. The power to ascertain facts is such a power which may be delegated.
There is nothing essentially legislative in ascertaining the existence of facts or
conditions as the basis of the taking into effect of a law. That is a mental process
common to all branches of the government. Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative authority on account of
the complexity arising from social and economic forces at work in this modern
industrial age the orthodox pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language — speaking of declaration
of legislative power to administrative agencies: "The principle which permits the
legislature to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is defended upon the
ground that at the time this authority is granted, the rule of public policy, which is the
essence of the legislative act, is determined by the legislature. In other words, the
legislature, as it its duty to do, determines that, under given circumstances, certain
executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the
administrative official is not the legislative determination of what public policy
demands, but simply the ascertainment of what the facts of the case require to be
done according to the terms of the law by which he is governed, it was said: "The
efficiency of an Act as a declaration of legislative will must, of course, come from
Congress, but the ascertainment of the contingency upon which the Act shall take
effect may be left to such agencies as it may designate." The legislature then may
provide that a contingencies leaving to some other person or body the power to
determine when the specified contingencies have arisen. But, in the case at bar, the
legislature has not made the operation of the Prohibition Act contingent upon
specified facts or conditions to be ascertained by the provincial board. It leaves, as
we have already said, the entire operation or non-operation of the law upon the
provincial board. the discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate conditions or find any fact, or await
the happening of any specified contingency. It is bound by no rule, — limited by no
principle of expediency announced by the legislature. It may take into consideration
certain facts or conditions; and, again, it may not. It may have any purpose or no
purpose at all. It need not give any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time — we cannot say when —
70
the provincial boards may appropriate funds for the salaries of probation officers and
thus put the law into operation in the various provinces will not save the statute. The
time of its taking into effect, we reiterate, would yet be based solely upon the will of
the provincial boards and not upon the happening of a certain specified contingency,
or upon the ascertainment of certain facts or conditions by a person or body other
than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of
suspending the operation of the Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be suspended only by the
legislature or by its authority. Thus, section 28, article I of the Constitution of Texas
provides that "No power of suspending laws in this state shall be exercised except
by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the
General Assembly." Yet, even provisions of this sort do not confer absolute power of
suspension upon the legislature. While it may be undoubted that the legislature may
suspend a law, or the execution or operation of a law, a law may not be suspended
as to certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174,
177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution of this
commonwealth, it is declared that the power of suspending the laws, or the
execution of the laws, ought never to be exercised but by the legislature, or
by authority derived from it, to be exercised in such particular cases only as
the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and
from the bill of rights passed in the reign of William and Mary. The bill of
rights contains an enumeration of the oppressive acts of James II, tending
to subvert and extirpate the protestant religion, and the laws and liberties of
the kingdom; and the first of them is the assuming and exercising a power
of dispensing with and suspending the laws, and the execution of the laws
without consent of parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such power, by legal
authority without consent of parliament, is illegal. In the tenth section of the
same statute it is further declared and enacted, that "No dispensation
by non obstante of or to any statute, or part thereof, should be allowed; but
the same should be held void and of no effect, except a dispensation be
allowed of in such statute." There is an implied reservation of authority in
the parliament to exercise the power here mentioned; because, according
to the theory of the English Constitution, "that absolute despotic power,
which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here
the sovereign and absolute power resides in the people; and the legislature
can only exercise what is delegated to them according to the constitution. It
is obvious that the exercise of the power in question would be equally
oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a
number of men. It cannot be supposed that the people when adopting this
general principle from the English bill of rights and inserting it in our
constitution, intended to bestow by implication on the general court one of
the most odious and oppressive prerogatives of the ancient kings of
England. It is manifestly contrary to the first principles of civil liberty and
natural justice, and to the spirit of our constitution and laws, that any one
citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that ant one should be subject to
losses, damages, suits, or actions from which all others under like
circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of
any dog liable to the owner of domestic animals wounded by it for the damages
without proving a knowledge of it vicious disposition. By a provision of the act, power
was given to the board of supervisors to determine whether or not during the current
year their county should be governed by the provisions of the act of which that
section constituted a part. It was held that the legislature could not confer that power.
The court observed that it could no more confer such a power than to authorize the
board of supervisors of a county to abolish in such county the days of grace on
commercial paper, or to suspend the statute of limitations. A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59
Am. Dec., 275.) In that case a general statute formulating a road system contained a
provision that "if the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in their discretion, suspend
the operation of the same for any specified length of time, and thereupon the act
should become inoperative in such county for the period specified in such order; and
thereupon order the roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is left to the county court to say
which act shall be enforce in their county. The act does not submit the question to
the county court as an original question, to be decided by that tribunal, whether the
act shall commence its operation within the county; but it became by its own terms a
law in every county not excepted by name in the act. It did not, then, require the
county court to do any act in order to give it effect. But being the law in the county,
and having by its provisions superseded and abrogated the inconsistent provisions
of previous laws, the county court is . . . empowered, to suspend this act and revive
the repealed provisions of the former act. When the question is before the county
court for that tribunal to determine which law shall be in force, it is urge before us
that the power then to be exercised by the court is strictly legislative power, which
under our constitution, cannot be delegated to that tribunal or to any other body of
men in the state. In the present case, the question is not presented in the abstract;
for the county court of Saline county, after the act had been for several months in
force in that county, did by order suspend its operation; and during that suspension
the offense was committed which is the subject of the present indictment . . . ."
True, the legislature may enact laws for a particular locality different from those
applicable to other localities and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6 R.C.L.,
p. 171.) But option laws thus sustained treat of subjects purely local in character
71
which should receive different treatment in different localities placed under different
circumstances. "They relate to subjects which, like the retailing of intoxicating drinks,
or the running at large of cattle in the highways, may be differently regarded in
different localities, and they are sustained on what seems to us the impregnable
ground, that the subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within the class of
public regulations, in respect to which it is proper that the local judgment should
control." So that, while we do not deny the right of local self-government and the
propriety of leaving matters of purely local concern in the hands of local authorities or
for the people of small communities to pass upon, we believe that in matters of
general of general legislation like that which treats of criminals in general, and as
regards the general subject of probation, discretion may not be vested in a manner
so unqualified and absolute as provided in Act No. 4221. True, the statute does not
expressly state that the provincial boards may suspend the operation of the
Probation Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of probation
officers, they thereby are given absolute discretion to determine whether or not the
law should take effect or operate in their respective provinces, the provincial boards
are in reality empowered by the legislature to suspend the operation of the Probation
Act in particular provinces, the Act to be held in abeyance until the provincial boards
should decide otherwise by appropriating the necessary funds. The validity of a law
is not tested by what has been done but by what may be done under its provisions.
It in conceded that a great deal of latitude should be granted to the legislature not
only in the expression of what may be termed legislative policy but in the elaboration
and execution thereof. "Without this power, legislation would become oppressive and
yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular
government lives because of the inexhaustible reservoir of power behind it. It is
unquestionable that the mass of powers of government is vested in the
representatives of the people and that these representatives are no further
restrained under our system than by the express language of the instrument
imposing the restraint, or by particular provisions which by clear intendment, have
that effect. But, it should be borne in mind that a constitution is both a grant and a
limitation of power and one of these time-honored limitations is that, subject to
certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial boards and is, for this reason,
unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill
of Rights which prohibits the denial to any person of the equal protection of
the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree
grand departments of our government and on the subordinate instrumentalities and
subdivision thereof, and on many constitutional power, like the police power, taxation
and eminent domain. The equal protection of laws, sententiously observes the
Supreme Court of the United States, "is a pledge of the protection of equal laws." Of
course, what may be regarded as a denial of the equal protection of the laws in a
question not always easily determined. No rule that will cover every case can be
formulated. Class legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor made arbitrarily or
capriciously, is permitted. The classification, however, to be reasonable must be
based on substantial distinctions which make real differences; it must be germane to
the purposes of the law; it must not be limited to existing conditions only, and must
apply equally to each member of the class.
In the case at bar, however, the resultant inequality may be said to flow from the
unwarranted delegation of legislative power, although perhaps this is not necessarily
the result in every case. Adopting the example given by one of the counsel for the
petitioners in the course of his oral argument, one province may appropriate the
necessary fund to defray the salary of a probation officer, while another province
may refuse or fail to do so. In such a case, the Probation Act would be in operation in
the former province but not in the latter. This means that a person otherwise coming
within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for the
salaries of the probation officers in their respective provinces, in which case no
inequality would result for the obvious reason that probation would be in operation in
each and every province by the affirmative action of appropriation by all the
provincial boards. On that hypothesis, every person coming within the purview of the
Probation Act would be entitled to avail of the benefits of the Act. Neither will there be
any resulting inequality if no province, through its provincial board, should
appropriate any amount for the salary of the probation officer — which is the
situation now — and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the
municipal board of said city has not made any appropriation for the salary of the
probation officer. These different situations suggested show, indeed, that while
inequality may result in the application of the law and in the conferment of the
benefits therein provided, inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that in section 11 of the Probation Act creates a
situation in which discrimination and inequality are permitted or allowed. There are,
to be sure, abundant authorities requiring actual denial of the equal protection of the
law before court should assume the task of setting aside a law vulnerable on that
score, but premises and circumstances considered, we are of the opinion that
section 11 of Act No. 4221 permits of the denial of the equal protection of the law and
is on that account bad. We see no difference between a law which permits of such
denial. A law may appear to be fair on its face and impartial in appearance, yet, if it
permits of unjust and illegal discrimination, it is within the constitutional prohibitions.
(In other words, statutes may be adjudged unconstitutional because of their effect in
operation Under section 11 of the Probation Act, not only may said Act be in force in
one or several provinces and not be in force in other provinces, but one province
may appropriate for the salary of the probation officer of a given year — and have
probation during that year — and thereafter decline to make further appropriation,
and have no probation is subsequent years. While this situation goes rather to the
abuse of discretion which delegation implies, it is here indicated to show that the
Probation Act sanctions a situation which is intolerable in a government of laws, and
to prove how easy it is, under the Act, to make the guaranty of the equality clause
but "a rope of sand". Great reliance is placed by counsel for the respondents on the
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case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that
case, the Supreme Court of the United States affirmed the decision of this court (18
Phil., 1) by declining to uphold the contention that there was a denial of the equal
protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality
clause does not require territorial uniformity. It should be observed, however, that this
case concerns the right to preliminary investigations in criminal cases originally
granted by General Orders No. 58. No question of legislative authority was involved
and the alleged denial of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of the City of Manila
(Act No. 813) and providing in section 2 thereof that "in cases triable only in the court
of first instance of the City of Manila, the defendant . . . shall not be entitled as of
right to a preliminary examination in any case where the prosecuting attorney, after a
due investigation of the facts . . . shall have presented an information against him in
proper form . . . ." Upon the other hand, an analysis of the arguments and the
decision indicates that the investigation by the prosecuting attorney — although not
in the form had in the provinces — was considered a reasonable substitute for the
City of Manila, considering the peculiar conditions of the city as found and taken into
account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has
reference to a situation where the constitution of Missouri permits appeals to the
Supreme Court of the state from final judgments of any circuit court, except those in
certain counties for which counties the constitution establishes a separate court of
appeals called St. Louis Court of Appeals. The provision complained of, then, is
found in the constitution itself and it is the constitution that makes the apportionment
of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void
because it is also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons
already stated, the next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of
a statute, and the courts will resort to elimination only where an
unconstitutional provision is interjected into a statute otherwise valid, and is
so independent and separable that its removal will leave the constitutional
features and purposes of the act substantially unaffected by the process.
In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-
established rule concerning partial invalidity of statutes in the following
language:
. . . where part of the a statute is void, as repugnant to the Organic Law,
while another part is valid, the valid portion, if separable from the valid, may
stand and be enforced. But in order to do this, the valid portion must be in
so far independent of the invalid portion that it is fair to presume that the
Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200
Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs.
Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must
remain to make a complete, intelligible, and valid statute, which carries out
the legislative intent. The void provisions must be eliminated without
causing results affecting the main purpose of the Act, in a manner contrary
to the intention of the Legislature. The language used in the invalid part of
a statute can have no legal force or efficacy for any purpose whatever, and
what remains must express the legislative will, independently of the void
part, since the court has no power to legislate.
It is contended that even if section 11, which makes the Probation Act applicable only
in those provinces in which the respective provincial boards provided for the salaries
of probation officers were inoperative on constitutional grounds, the remainder of the
Act would still be valid and may be enforced. We should be inclined to accept the
suggestions but for the fact that said section is, in our opinion, is inseparably linked
with the other portions of the Act that with the elimination of the section what would
be left is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of that
system. The clear policy of the law, as may be gleaned from a careful examination of
the whole context, is to make the application of the system dependent entirely upon
the affirmative action of the different provincial boards through appropriation of the
salaries for probation officers at rates not lower than those provided for provincial
fiscals. Without such action on the part of the various boards, no probation officers
would be appointed by the Secretary of Justice to act in the provinces. The
Philippines is divided or subdivided into provinces and it needs no argument to show
that if not one of the provinces — and this is the actual situation now — appropriate
the necessary fund for the salary of a probation officer, probation under Act No. 4221
would be illusory. There can be no probation without a probation officer. Neither can
there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the
probationer. Every probation officer is given, as to the person placed in probation
under his care, the powers of the police officer. It is the duty of the probation officer
to see that the conditions which are imposed by the court upon the probationer under
his care are complied with. Among those conditions, the following are enumerated in
section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation
officers;
(d) Shall permit the probation officer to visit him at reasonable times at his
place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the
probation officer concerning his conduct or condition; "(f) Shall endeavor to
be employed regularly; "(g) Shall remain or reside within a specified place
or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual
damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make;
and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or
regulation, promulgated in accordance with law.
73
The court is required to notify the probation officer in writing of the period and terms
of probation. Under section 4, it is only after the period of probation, the submission
of a report of the probation officer and appropriate finding of the court that the
probationer has complied with the conditions of probation that probation may be
definitely terminated and the probationer finally discharged from supervision. Under
section 5, if the court finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the arrest of the
probationer and said probationer may be committed with or without bail. Upon
arraignment and after an opportunity to be heard, the court may revoke, continue or
modify the probation, and if revoked, the court shall order the execution of the
sentence originally imposed. Section 6 prescribes the duties of probation officers: "It
shall be the duty of every probation officer to furnish to all persons placed on
probation under his supervision a statement of the period and conditions of their
probation, and to instruct them concerning the same; to keep informed concerning
their conduct and condition; to aid and encourage them by friendly advice and
admonition, and by such other measures, not inconsistent with the conditions
imposed by court as may seem most suitable, to bring about improvement in their
conduct and condition; to report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their conduct and condition;
to keep records of their work; make such report as are necessary for the information
of the Secretary of Justice and as the latter may require; and to perform such other
duties as are consistent with the functions of the probation officer and as the court or
judge may direct. The probation officers provided for in this Act may act as parole
officers for any penal or reformatory institution for adults when so requested by the
authorities thereof, and, when designated by the Secretary of Justice shall act as
parole officer of persons released on parole under Act Number Forty-one Hundred
and Three, without additional compensation."
It is argued, however, that even without section 11 probation officers maybe
appointed in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its
supervision and control, a Probation Office under the direction of a Chief
Probation Officer to be appointed by the Governor-General with the advise
and consent of the Senate who shall receive a salary of four eight hundred
pesos per annum. To carry out this Act there is hereby appropriated out of
any funds in the Insular Treasury not otherwise appropriated, the sum of
fifty thousand pesos to be disbursed by the Secretary of Justice, who is
hereby authorized to appoint probation officers and the administrative
personnel of the probation officer under civil service regulations from
among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of
such probation officers and administrative personnel until such positions
shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the
foregoing section are clearly not those probation officers required to be appointed for
the provinces under section 11. It may be said, reddendo singula singulis, that the
probation officers referred to in section 10 above-quoted are to act as such, not in
the various provinces, but in the central office known as the Probation Office
established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate
and make reports to the court (secs. 1 and 4); that "the probation officer" shall
supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall
report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer"
to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the
part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that
the court shall notify "the probation officer" in writing of the period and terms of
probation (sec. 3, last par.), it means the probation officer who is in charge of a
particular probationer in a particular province. It never could have been intention of
the legislature, for instance, to require the probationer in Batanes, to report to a
probationer officer in the City of Manila, or to require a probation officer in Manila to
visit the probationer in the said province of Batanes, to place him under his care, to
supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation
officers as there are provinces or groups of provinces is, of course possible. But this
would be arguing on what the law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and propriety of legislation is not
for us to pass upon. We may think a law better otherwise than it is. But much as has
been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions
which are not there. Not for any purpose — not even to save a statute from the doom
of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the
Insular Government defray the salaries of probation officers in the provinces but to
make the provinces defray them should they desire to have the Probation Act apply
thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is
to be applied, among other things, for the salaries of probation officers in the central
office at Manila. These probation officers are to receive such compensations as the
Secretary of Justice may fix "until such positions shall have been included in the
Appropriation Act". It was the intention of the legislature to empower the Secretary of
Justice to fix the salaries of the probation officers in the provinces or later on to
include said salaries in an appropriation act. Considering, further, that the sum of
P50,000 appropriated in section 10 is to cover, among other things, the salaries of
the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation
officers in the provinces. We take judicial notice of the fact that there are 48
provinces in the Philippines and we do not think it is seriously contended that, with
the fifty thousand pesos appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary not lower than that of a
provincial fiscal. If this a correct, the contention that without section 11 of Act No.
4221 said act is complete is an impracticable thing under the remainder of the Act,
unless it is conceded that in our case there can be a system of probation in the
provinces without probation officers.
Probation as a development of a modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to permit what
modern criminologist call the "individualization of the punishment", the adjustment of
74
the penalty to the character of the criminal and the circumstances of his particular
case. It provides a period of grace in order to aid in the rehabilitation of a penitent
offender. It is believed that, in any cases, convicts may be reformed and their
development into hardened criminals aborted. It, therefore, takes advantage of an
opportunity for reformation and avoids imprisonment so long as the convicts gives
promise of reform. The Welfare of society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside because of
the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects
presented by able counsel for both parties, as well in their memorandums as in their
oral argument. We have examined the cases brought to our attention, and others we
have been able to reach in the short time at our command for the study and
deliberation of this case. In the examination of the cases and in then analysis of the
legal principles involved we have inclined to adopt the line of action which in our
opinion, is supported better reasoned authorities and is more conducive to the
general welfare. Realizing the conflict of authorities, we have declined to be bound
by certain adjudicated cases brought to our attention, except where the point or
principle is settled directly or by clear implication by the more authoritative
pronouncements of the Supreme Court of the United States. This line of approach is
justified because:
(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the American
Government is a situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia
with reference to the Federal Government of the United States is not the
situation of the province with respect to the Insular Government (Art. I, sec.
8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs.
Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United
States do not embrace the integrated judicial system of the Philippines
(Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in
Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and,
"to keep pace with . . . new developments of times and circumstances"
(Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co.
[1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2,
Dec. 1919, 141, 142), fundamental principles should be interpreted having
in view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition
is, accordingly, granted. Without any pronouncement regarding costs. So ordered.
SENATE OF THE PHILIPPINES, G.R. No. 169777*
represented by FRANKLIN M. DRILON, in Promulgated:
his capacity as Senate President, April 20, 2006
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.
x-----------------------------------------------------------------------------------------x
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
75
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
76
 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 Arroyos 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; COURAGE alleges 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.
77
 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 Senates 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 as G.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. The procedural 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]
78
 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 Courts 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 Munas 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 Courts 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]
79
 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-Labans 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 Presidents 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. For E.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
80
contempt. Upholding the Senates 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 Courts 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 Houses 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]
81
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 informers 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 for internal 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]
Tribes 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 Blacks 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 Nixons
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 Presidents 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 Presidents powers. The Court, nonetheless, rejected the Presidents
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 Washingtons 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 Presidents privilege
over his conversations against a congressional subpoena.[75] Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, 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)
82
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 thereof may 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--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--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)
83
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 Davides only
concern was that the two provisions on these distinct powers be placed closely
together, they being complementary 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 Maambongs 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
84
 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 executive official 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 of information and not to categories of persons.
85
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 officials 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 Ermitas 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.
PEAthat 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 coverPresidential
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
86
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 is included 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
claimants 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 claimants 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
claimants 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 as precise 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 Courts 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
87
 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 Presidents 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 of highly
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.
88
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
holds Valmonte 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 peoples
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 legislatures 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, Taada 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 accomplishwas 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
89
CONSTITUTION, AND FOR OTHER PURPOSES, are declared VOID. Sections 1 EN BANC
and 2(a) are, however, VALID. [G.R. No. 157509. January 18, 2005]
AUTOMOTIVE INDUSTRY WORKERS ALLIANCE (AIWA) and its Affiliated
SO ORDERED. Unions: Mitsubishi Motors Workers Phils. Union;, petitioners, vs. HON.
ALBERTO ROMULO, in his capacity as Executive Secretary, and HON.
PATRICIA STO. TOMAS, in her capacity as Secretary of Labor and
Employment, respondents.
DECISION
CHICO-NAZARIO, J.:
Petitioners, composed of ten (10) labor unions, call upon this Court to exercise
its power of judicial review to declare as unconstitutional an executive order assailed
to be in derogation of the constitutional doctrine of separation of powers.

In an original action for certiorari, petitioners invoke their status as labor unions
and as taxpayers whose rights and interests are allegedly violated and prejudiced by
Executive Order No. 185 dated 10 March 2003 whereby administrative supervision
over the National Labor Relations Commission (NLRC), its regional branches and all
its personnel including the executive labor arbiters and labor arbiters was transferred
from the NLRC Chairperson to the Secretary of Labor and Employment. In support of
their position,[1] petitioners argue that the NLRC -- created by Presidential Decree
No. 442, otherwise known as the Labor Code, during Martial Law was an integral
part of the Department (then Ministry) of Labor and Employment (DOLE) under the
administrative supervision of the Secretary of Justice. During the time of President
Corazon C. Aquino, and while she was endowed with legislative functions after
EDSA I, Executive Order No. 292 [2] was issued whereby the NLRC became an
agency attached to the DOLE for policy and program coordination and for
administrative supervision. On 02 March 1989, Article 213 of the Labor Code was
expressly amended by Republic Act No. 6715 declaring that the NLRC was to be
attached to the DOLE for program and policy coordination only while the
administrative supervision over the NLRC, its regional branches and personnel, was
turned over to the NLRC Chairman. The subject E.O. No. 185, in authorizing the
Secretary of Labor to exercise administrative supervision over the NLRC, its regional
branches and personnel, allegedly reverted to the pre-Rep. Act No. 6715 set-up,
amending the latter law which only Congress can do.

The respondents herein, as represented by the Office of the Solicitor General,

opposed the petition on procedural[3] and substantive[4] grounds. Procedurally, it is
alleged that the petition does not pose an actual case or controversy upon which
judicial review may be exercised as petitioners have not specifically cited how E.O.
No. 185 has prejudiced or threatened to prejudice their rights and existence as labor
unions and as taxpayers. Closely intertwined therewith, respondents further argue
that petitioners have no locus standi to assail the validity of E.O. No. 185, not even in
their capacity as taxpayers, considering that labor unions are exempt from paying
taxes, citing Sec. 30 of the Tax Reform Act of 1997. Even assuming that their
individual members are taxpayers, respondents maintain that a taxpayer suit will not
prosper as E.O. No. 185 does not require additional appropriation for its
implementation. As the petition can be decided without passing on the validity of the
subject executive order, respondents conclude that the same should be forthwith
dismissed.

90
 Even on the merits, respondents advance the view that the petition must fail as
the administrative supervision granted by the Labor Code to the NLRC Chairman
over the NLRC, its regional branches and personnel, does not place them beyond
the Presidents broader power of control and supervision, a power conferred no less
than by the Constitution in Section 17, Article VII thereof. Thus, in the exercise of the
Presidents power of control and supervision, he can generally oversee the
operations of the NLRC, its regional branches and personnel thru his alter ego, the
Secretary of Labor, pursuant to the doctrine of qualified political agency.
In their Reply,[5] petitioners affirm their locus standi contending that they are
suing for and in behalf of their members estimated to be more or less fifty thousand
(50,000) workers who are the real parties to be affected by the resolution of this
Court. They likewise maintain that they are suing in behalf of the employees of the
NLRC who have pending cases for dismissal. Thus, possessed of the necessary
standing, petitioners theorize that the issue before this Court must necessarily be
decided as it involves an act of the Chief Executive amending a provision of law.
For clarity, E.O. No. 185 is hereby quoted:
EXECUTIVE ORDER NO. 185
AUTHORIZING THE SECRETARY OF LABOR AND
EMPLOYMENT TO EXERCISE ADMINISTRATIVE
SUPERVISION OVER THE NATIONAL LABOR RELATIONS
COMMISSION
WHEREAS, Section 17, Article VII of the Constitution provides that the President
shall have control of all executive departments, bureaus and offices and shall ensure
that the laws be faithfully executed;
WHEREAS, the National Labor Relations Commission (NLRC) which was created by
virtue of Presidential Decree No. 442, otherwise known as the Labor Code of the
Philippines, is an agency under the Executive Department and was originally
envisaged as being an integral part of the Department (then Ministry) of Labor and
Employment (DOLE) under the administrative supervision of the Secretary of Labor
and Employment (Secretary of Labor);
WHEREAS, upon the issuance of Executive Order No. 292, otherwise known as
the Revised Administrative Code of 1987 (the Administrative Code), the NLRC, by
virtue of Section 25, Chapter 6, Title VII, Book IV thereof, became an agency
attached to the DOLE for policy and program coordination and administrative
supervision;
WHEREAS, Article 213 of the Labor Code and Section 25, Chapter 6, Title VII, Book
IV of the Administrative Code were amended by Republic Act. No. 6715 approved on
March 2, 1989, which provides that the NLRC shall be attached to the DOLE for
program and policy coordination only and transferred administrative supervision over
the NLRC, all its regional branches and personnel to the NLRC Chairman;
WHEREAS, Section 16, Article III of the Constitution guarantees the right of all
persons to a speedy disposition of their cases before all judicial, quasi-judicial and
administrative bodies;
WHEREAS, the Secretary of Labor, after evaluating the NLRCs performance record
in the last five (5) years, including the rate of disposition of pending cases before it,
has informed the President that there is a need to expedite the disposition of labor
cases pending before the NLRC and all its regional and sub-regional branches or
provincial extension units and initiate potent measures to prevent graft and
corruption therein so as to reform its systems and personnel, as well as infuse the
organization with a sense of public service in consonance with the imperative of
change for the greater interest of the people;
WHEREAS, after consultations with the relevant sectors, the Secretary of Labor has
recommended that the President, pursuant to her powers under the Constitution and
existing laws, authorize the Secretary of Labor to exercise administrative supervision
over the NLRC and all its regional and sub-regional branches or provincial extension
units with the objective of improving the rate of disposition of pending cases and
institute adequate measures for the prevention of graft and corruption within the said
agency;
NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the Republic
of the Philippines, by virtue of the powers vested in me by the Constitution and
existing laws, do hereby order:
SECTION 1. Authority To Exercise Administrative Supervision. The Secretary of
Labor is hereby authorized to exercise administrative supervision over the NLRC, its
regional branches and all its personnel, including the Executive Labor Arbiters and
Labor Arbiters, with the objective of improving the rate of disposition of cases
pending before it and its regional and sub-regional branches or provincial extension
units and to institute adequate measures for the prevention of graft and corruption
within the said agency.
For this purpose, the Secretary of Labor shall, among others:
a. Generally oversee the operations of the NLRC and its regional and
sub-regional branches or provincial extension units for the purpose of
ensuring that cases pending before them are decided or resolved
expeditiously;
b. Require the submission of reports as the Secretary of Labor may deem
necessary;
c. Initiate measures within the agency to prevent graft and corruption,
including but not limited to, the conduct of management audits,
performance evaluations and inspections to determine compliance
with established policies, standards and guidelines;
d. To take such action as may be necessary for the proper performance of
official functions, including rectification of violations, abuses and other
forms of mal-administration; and
e. Investigate, on its own or upon complaint, matters involving disciplinary
action against any of the NLRCs personnel, including Presidential
appointees, in accordance with existing laws, rules and regulations.
After completing his/her investigation, the Secretary of Labor shall
submit a report to the President on the investigation conducted with a
recommendation as to the penalty to be imposed or other action to be
taken, including referral to the Presidential Anti-Graft Commission
(PAGC), the Office of the Ombudsman or any other office, committee,
commission, agency, department, instrumentality or branch of the
government for appropriate action.
The authority conferred herein upon the Secretary of Labor shall not extend to the
power to review, reverse, revise, or modify the decisions of the NLRC in the exercise
91
of its quasi-judicial functions (cf. Section 38(2) (b), Chapter 7, Book IV, Administrative
Code).
SECTION 2. Report to the Secretary of Labor. The NLRC, through its Chairman,
shall submit a report to the Secretary of Labor within thirty (30) days from issuance
of this Executive Order, on the following matters:
a. Performance Report/Audit for the last five (5) years, including list of
pending cases and cases disposed of within the said period by the
NLRC en banc, by Division and by the Labor Arbiters in each of its
regional and sub-regional branches or provincial extension units;
b. Detailed Master Plan on how to liquidate its backlog of cases with clear
timetables to clean up its dockets within six (6) months from the
issuance hereof;
c. Complete inventory of its assets and list of personnel indicating their
present positions and stations; and
d. Such other matters as may be required by the Secretary of Labor.
SECTION 3. Rules and Regulations. The Secretary of Labor, in consultation with the
Chairman of the NLRC, is hereby authorized to issue rules and regulations for the
effective implementation of the provisions of this Executive Order.
SECTION 4. Repealing Clause. All laws, executive issuances, rules and regulations
or parts thereof which are inconsistent with the provisions of this Executive Order are
hereby repealed, amended, or modified accordingly.
SECTION 5. Effectivity. This Executive Order shall take effect immediately upon the
completion of its publication in the Official Gazette or in a newspaper of general
circulation in the country.
City of Manila, March 10, 2003.[6]
The constitutionality of a governmental act having been challenged, it comes as
no surprise that the first line of defense is to question the standing of petitioners and
the justiciability of herein case.
It is hornbook doctrine that the exercise of the power of judicial review requires
the concurrence of the following requisites, namely: (1) the existence of an
appropriate case; (2) an interest personal and substantial by the party raising the
constitutional question; (3) the plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the constitutional question be passed upon in
order to decide the case.[7]
As correctly pointed out by respondents, judicial review cannot be exercised in
vacuo. The function of the courts is to determine controversies between litigants and
not to give advisory opinions.[8] The power of judicial review can only be exercised in
connection with a bona fide case or controversy which involves the statute sought to
be reviewed.[9]
Even with the presence of an actual case or controversy, the Court may refuse
to exercise judicial review unless the constitutional question is brought before it by a
party having the requisite standing to challenge it.[10] Legal standing or locus standi is
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.[11] For a citizen to have standing, he must establish that he has suffered
some actual or threatened injury as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the challenged action; and the injury is
likely to be redressed by a favorable action.[12]
Petitioners have not shown that they have sustained or are in danger of
sustaining any personal injury attributable to the enactment of E.O. No. 185. As labor
unions representing their members, it cannot be said that E.O. No. 185 will prejudice
their rights and interests considering that the scope of the authority conferred upon
the Secretary of Labor does not extend to the power to review, reverse, revise or
modify the decisions of the NLRC in the exercise of its quasi-judicial functions.
[13]
Thus, only NLRC personnel who may find themselves the subject of the Secretary
of Labors disciplinary authority, conferred by Section 1(d) of the subject executive
order, may be said to have a direct and specific interest in raising the substantive
issue herein. Moreover, and if at all, only Congress, and not petitioners, can claim
any injury[14] from the alleged executive encroachment of the legislative function to
amend, modify and/or repeal laws.
Neither can standing be conferred on petitioners as taxpayers since petitioners
have not established disbursement of public funds in contravention of law or the
Constitution.[15] A taxpayers suit is properly brought only when there is an exercise of
the spending or taxing power of Congress.[16] As correctly pointed out by
respondents, E.O. No. 185 does not even require for its implementation additional
appropriation.
All told, if we were to follow the strict rule on locus standi, this petition should be
forthwith dismissed on that score. The rule on standing, however, is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overarching significance to society, or of
paramount public interest.[17]
The question is, does the issue posed in this petition meet the exacting
standard required for this Court to take the liberal approach and recognize the
standing of herein petitioners?
The instant petition fails to persuade us.
The subject matter of E.O. No. 185 is the grant of authority by the President to
the Secretary of Labor to exercise administrative supervision over the NLRC, its
regional branches and all its personnel, including the Executive Labor Arbiters and
Labor Arbiters. Its impact, sans the challenge to its constitutionality, is thereby limited
to the departments to which it is addressed. Taking our cue from the early case
of Olsen v. Herstein and Rafferty,[18] the subject executive order can be considered
as nothing more or less than a command from a superior to an inferior. It creates no
relation except between the official who issued it and the officials who received it. It
has for its object simply the efficient and economical administration of the affairs of
the department to which it is issued in accordance with the law governing the subject
matter. Administrative in its nature, the subject order does not pass beyond the limits
of the departments to which it is directed, hence, it has not created any rights in third
persons, not even in the fifty thousand or so union members being represented by
92
petitioners who may or may not have pending cases before the labor arbiters or the
NLRC.
In fine, considering that the governmental act being questioned has a limited
reach, its impact confined to corridors of the executive department, this is not one of
those exceptional occasions where the Court is justified in sweeping aside a critical
procedural requirement, rooted as it is in the constitutionally enshrined principle of
separation of powers. As succinctly put by Mr. Justice Reynato S. Puno in his
dissenting opinion in the first Kilosbayan case:[19]
. . . [C]ourts are neither free to decide all kinds of cases dumped into their laps nor
are they free to open their doors to all parties or entities claiming a grievance. The
rationale for this constitutional requirement of locus standi is by no means trifle. It is
intended to assure a vigorous adversary presentation of the case, and, perhaps
more importantly to warrant the judiciarys overruling the determination of a
coordinate, democratically elected organ of government.[20] It thus goes to the very
essence of representative democracies.
A lesser but not insignificant reason for screening the standing of persons who desire
to litigate constitutional issues is economic in character. Given the sparseness of our
resources, the capacity of courts to render efficient judicial service to our people is
severely limited. For courts to indiscriminately open their doors to all types of suits
and suitors is for them to unduly overburden their dockets, and ultimately render
themselves ineffective dispensers of justice. To be sure, this is an evil that clearly
confronts our judiciary today.
All things considered, whether or not E.O. No. 185 is indeed unconstitutional
will have to await the proper party in a proper case to assail its validity.
WHEREFORE, premises considered, the instant petition dated 27 March 2003
is hereby DISMISSED for lack of merit. No costs.
SO ORDERED.
[G.R. No. 152895. June 15, 2004]
OFELIA V. ARCETA, petitioner, vs. The Honorable
MA. CELESTINA C. MANGROBANG, Presiding Judge, Branch 54,
Metropolitan Trial Court of Navotas, Metro Manila, respondent.
RESOLUTION
QUISUMBING, J.:
For resolution are two consolidated[1] petitions under Rule 65 of the Rules of
Court, for certiorari, prohibition and mandamus, with prayers for a temporary
restraining order.Both assail the constitutionality of the Bouncing Checks Law, also
known as Batas Pambansa Bilang 22.
In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the
Metropolitan Trial Court (MeTC) of Navotas, Metro Manila, Branch 54, to cease and
desist from hearing Criminal Case No. 1599-CR for violation of B.P. Blg. 22, and then
dismiss the case against her. In G.R. No. 153151, petitioner Gloria S. Dy also prays
that this Court order the MeTC of Caloocan City to cease and desist from proceeding
with Criminal Case No. 212183, and subsequently dismiss the case against her. In
fine, however, we find that what both petitioners seek is that the Court should revisit
and abandon the doctrine laid down in Lozano v. Martinez,[2] which upheld the
validity of the Bouncing Checks Law.
The facts of these cases are not in dispute.
1. G.R. No. 152895
The City Prosecutor of Navotas, Metro Manila charged Ofelia V. Arceta with
violating B.P. Blg. 22 in an Information, which was docketed as Criminal Case No.
1599-CR.The accusatory portion of said Information reads:
That on or about the 16th day of September 1998, in Navotas, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there wilfully, unlawfully and feloniously make or draw and issue to OSCAR R.
CASTRO, to apply on account or for value the check described below:
Check No : 00082270
Drawn Against : The Region Bank
In the Amount of : P740,000.00
Date : December 21, 1998
Payable to : Cash
said accused well-knowing that at the time of issue Ofelia V. Arceta did not have
sufficient funds or credit with the drawee bank for the payment, which check when
presented for payment within ninety (90) days from the date thereof was
subsequently dishonored by the drawee bank for reason DRAWN AGAINST
INSUFFICIENT FUNDS, and despite receipt of notice of such dishonor, the accused
failed to pay said payee with the face amount of said check or to make arrangement
for full payment thereof within five (5) banking days after receiving notice.
CONTRARY TO LAW.[3]
Arceta did not move to have the charge against her dismissed or the
Information quashed on the ground that B.P. Blg. 22 was unconstitutional. She
reasoned out that with the Lozano doctrine still in place, such a move would be an
exercise in futility for it was highly unlikely that the trial court would grant her motion
and thus go against prevailing jurisprudence.
93
 On October 21, 2002,[4] Arceta was arraigned and pleaded not guilty to the
charge. However, she manifested that her arraignment should be without prejudice
to the present petition or to any other actions she would take to suspend
proceedings in the trial court.
Arceta then filed the instant petition.
2. G.R. No. 153151
The Office of the City Prosecutor of Caloocan filed a charge sheet against
Gloria S. Dy for violation of the Bouncing Checks Law, docketed by the MeTC of
Caloocan City as Criminal Case No. 212183. Dy allegedly committed the offense in
this wise:
That on or about the month of January 2000 in Caloocan City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and feloniously make and issue
Check No. 0000329230 drawn against PRUDENTIAL BANK in the amount
of P2,500,000.00 dated January 19, 2000 to apply for value in favor of ANITA CHUA
well knowing at the time of issue that she has no sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment which check
was subsequently dishonored for the reason ACCOUNT CLOSED and with intent to
defraud failed and still fails to pay the said complainant the amount of P2,500,000.00
despite receipt of notice from the drawee bank that said check has been dishonored
and had not been paid.
Contrary to Law.[5]
Like Arceta, Dy made no move to dismiss the charges against her on the
ground that B.P. Blg. 22 was unconstitutional. Dy likewise believed that any move on
her part to quash the indictment or to dismiss the charges on said ground would fail
in view of the Lozano ruling. Instead, she filed a petition with this Court invoking its
power of judicial review to have the said law voided for Constitutional infirmity.
Both Arceta and Dy raise the following identical issues for our resolution:
[a] Does section 1 really penalize the act of issuing a check subsequently dishonored
by the bank for lack of funds?
[b] What is the effect if the dishonored check is not paid pursuant to section 2 of BP
22?
[c] What is the effect if it is so paid?
[d] Does section 2 make BP 22 a debt collecting law under threat of imprisonment?
[e] Does BP 22 violate the constitutional proscription against imprisonment for non-
payment of debt?
[f] Is BP 22 a valid exercise of the police power of the state?[6]
After minute scrutiny of petitioners submissions, we find that the basic issue
being raised in these special civil actions for certiorari, prohibition, and mandamus
concern the unconstitutionality or invalidity of B.P. Blg. 22. Otherwise put, the
petitions constitute an oblique attack on the constitutionality of the Bouncing Checks
Law, a matter already passed upon by the Court through Justice (later Chief Justice)
Pedro Yap almost two decades ago. Petitioners add, however, among the pertinent
issues one based on the observable but worrisome transformation of certain
metropolitan trial courts into seeming collection agencies of creditors whose
complaints now clog the court dockets.
But let us return to basics. When the issue of unconstitutionality of a legislative
act is raised, it is the established doctrine that the Court may exercise its power of
judicial review only if the following requisites are present: (1) an actual and
appropriate case and controversy exists; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional question raised is the
very lis mota of the case.[7] Only when these requisites are satisfied may the Court
assume jurisdiction over a question of unconstitutionality or invalidity of an act of
Congress. With due regard to counsels spirited advocacy in both cases, we are
unable to agree that the abovecited requisites have been adequately met.
Perusal of these petitions reveals that they are primarily anchored on Rule 65,
Section 1[8] of the 1997 Rules of Civil Procedure. In a special civil action of certiorari
the only question that may be raised is whether or not the respondent has acted
without or in excess of jurisdiction or with grave abuse of discretion. [9] Yet nowhere in
these petitions is there any allegation that the respondent judges acted with grave
abuse of discretion amounting to lack or excess of jurisdiction. A special civil action
for certiorari will prosper only if a grave abuse of discretion is manifested.[10]
Noteworthy, the instant petitions are conspicuously devoid of any attachments
or annexes in the form of a copy of an order, decision, or resolution issued by the
respondent judges so as to place them understandably within the ambit of Rule
65. What are appended to the petitions are only copies of the Informations in the
respective cases, nothing else. Evidently, these petitions for a writ of certiorari,
prohibition and mandamus do not qualify as the actual and appropriate cases
contemplated by the rules as the first requisite for the exercise of this Courts power
of judicial review. For as the petitions clearly show on their faces petitioners have not
come to us with sufficient cause of action.
Instead, it appears to us that herein petitioners have placed the cart before the
horse, figuratively speaking. Simply put, they have ignored the hierarchy of courts
outlined in Rule 65, Section 4[11] of the 1997 Rules of Civil Procedure. Seeking
judicial review at the earliest opportunity does not mean immediately elevating the
matter to this Court.Earliest opportunity means that the question of
unconstitutionality of the act in question should have been immediately raised in the
proceedings in the court below. Thus, the petitioners should have moved to quash
the separate indictments or moved to dismiss the cases in the proceedings in the
trial courts on the ground of unconstitutionality of B.P. Blg. 22. But the records show
that petitioners failed to initiate such moves in the proceedings below. Needless to
emphasize, this Court could not entertain questions on the invalidity of a statute
where that issue was not specifically raised, insisted upon, and adequately argued.
[12]
Taking into account the early stage of the trial proceedings below, the instant
petitions are patently premature.
Nor do we find the constitutional question herein raised to be the
very lis mota presented in the controversy below. 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, and not one that is doubtful, speculative
or argumentative.[13] We have examined the contentions of the petitioners carefully;
but they still have to persuade us that B.P. Blg. 22 by itself or in its implementation
94
transgressed a provision of the Constitution. Even the thesis of petitioner Dy that the
present economic and financial crisis should be a basis to declare the Bouncing
Checks Law constitutionally infirm deserves but scant consideration. As we stressed
in Lozano, it is precisely during trying times that there exists a most compelling
reason to strengthen faith and confidence in the financial system and any practice
tending to destroy confidence in checks as currency substitutes should be deterred,
to prevent havoc in the trading and financial communities. Further, while indeed the
metropolitan trial courts may be burdened immensely by bouncing checks cases
now, that fact is immaterial to the alleged invalidity of the law being assailed. The
solution to the clogging of dockets in lower courts lies elsewhere.

WHEREFORE, the instant petitions are DISMISSED for utter lack of merit.

SO ORDERED.

95