RULE 66 - QUO WARRANTO candidacy for the position of President of the Republic of the

Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party,

in the forthcoming national elections. In his certificate of candidacy,
#2 G.R. No. 161434 March 3, 2004 FPJ, representing himself to be a natural-born citizen of the
Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan"
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, Poe, his date of birth to be 20 August 1939 and his place of birth to
JR., petitioners, be Manila.
vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino
(a.k.a. FERNANDO POE, JR.) and VICTORINO X. X. Fornier, Petitioner, versus Hon. Commission on Elections and
FORNIER, respondents.
Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.,
Respondents," initiated, on 09 January 2004, a petition docketed SPA
x-----------------------------x No. 04-003 before the Commission on Elections ("COMELEC") to
disqualify FPJ and to deny due course or to cancel his certificate of
G.R. No. 161634 March 3, 2004 candidacy upon the thesis that FPJ made a material misrepresentation
in his certificate of candidacy by claiming to be a natural-born Filipino
ZOILO ANTONIO VELEZ, petitioner, citizen when in truth, according to Fornier, his parents were foreigners;
vs. his mother, Bessie Kelley Poe, was an American, and his father, Allan
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish
JR., respondent. subject. Granting, petitioner asseverated, that Allan F. Poe was a
Filipino citizen, he could not have transmitted his Filipino citizenship
to FPJ, the latter being an illegitimate child of an alien mother.
x-----------------------------x
Petitioner based the allegation of the illegitimate birth of respondent
on two assertions - first, Allan F. Poe contracted a prior marriage to a
G. R. No. 161824 March 3, 2004 certain Paulita Gomez before his marriage to Bessie Kelley and,
second, even if no such prior marriage had existed, Allan F. Poe,
VICTORINO X. FORNIER, petitioner, married Bessie Kelly only a year after the birth of respondent.
vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY In the hearing before the Third Division of the COMELEC on 19 January
POE, ALSO KNOWN AS FERNANDO POE JR., respondents. 2004, petitioner, in support of his claim, presented several
documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a
DECISION certified photocopy of an affidavit executed in Spanish by Paulita Poe
y Gomez attesting to her having filed a case for bigamy and
concubinage against the father of respondent, Allan F. Poe, after
VITUG, J.:
discovering his bigamous relationship with Bessie Kelley, 3) an English
translation of the affidavit aforesaid, 4) a certified photocopy of the
Citizenship is a treasured right conferred on those whom the state certificate of birth of Allan F. Poe, 5) a certification issued by the
believes are deserving of the privilege. It is a "precious heritage, Director of the Records Management and Archives Office, attesting to
as well as an inestimable acquisition,"1 that cannot be taken the fact that there was no record in the National Archives that a
lightly by anyone - either by those who enjoy it or by those who Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before
dispute it. 1907, and 6) a certification from the Officer-In-Charge of the Archives
Division of the National Archives to the effect that no available
Before the Court are three consolidated cases, all of which raise a information could be found in the files of the National Archives
single question of profound importance to the nation. The issue of regarding the birth of Allan F. Poe.
citizenship is brought up to challenge the qualifications of a
presidential candidate to hold the highest office of the land. Our On his part, respondent, presented twenty-two documentary pieces
people are waiting for the judgment of the Court with bated breath. of evidence, the more significant ones being - a) a certification issued
Is Fernando Poe, Jr., the hero of silver screen, and now one of the main by Estrella M. Domingo of the Archives Division of the National
contenders for the presidency, a natural-born Filipino or is he not? Archives that there appeared to be no available information regarding
the birth of Allan F. Poe in the registry of births for San Carlos,
The moment of introspection takes us face to face with Spanish and Pangasinan, b) a certification issued by the Officer-In-Charge of the
American colonial roots and reminds us of the rich heritage of civil law Archives Division of the National Archives that no available
and common law traditions, the fusion resulting in a hybrid of laws information about the marriage of Allan F. Poe and Paulita Gomez
and jurisprudence that could be no less than distinctly Filipino. could be found, c) a certificate of birth of Ronald Allan Poe, d) Original
Certificate of Title No. P-2247 of the Registry of Deeds for the Province
Antecedent Case Settings of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax
Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the
name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known
Pou, g) a copy of the purported marriage contract between Fernando
as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of
Prov Rem Rule 66 (QW) Fulltext Page 1 of 25
Pou and Bessie Kelley, and h) a certification issued by the City Civil
Registrar of San Carlos City, Pangasinan, stating that the records of
birth in the said office during the period of from 1900 until May 1946
were totally destroyed during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack
of merit. Three days later, or on 26 January 2004, Fornier filed his
motion for reconsideration. The motion was denied on 06 February
2004 by the COMELEC en banc. On 10 February 2004, petitioner
assailed the decision of the COMELEC before this Court conformably
with Rule 64, in relation to Rule 65, of the Revised Rules of Civil
Procedure. The petition, docketed G. R. No. 161824, likewise prayed
for a temporary restraining order, a writ of preliminary injunction or
any other resolution that would stay the finality and/or execution of
the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would
include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix
B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley
Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald
Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the
jurisdiction of the COMELEC and asserting that, under Article VII,
Section 4, paragraph 7, of the 1987 Constitution, only the Supreme
Court had original and exclusive jurisdiction to resolve the basic issue
on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the
COMELEC deny due course to or cancel FPJ’s certificate of candidacy
for alleged misrepresentation of a material fact (i.e., that FPJ was a
natural-born citizen) before the COMELEC, petitioner Fornier invoked
Section 78 of the Omnibus Election Code –
"Section 78. Petition to deny due course to or cancel a
certificate of candidacy. --- A verified petition seeking to
deny due course or to cancel a certificate of candidacy may
be filed by any person exclusively on the ground that any
material representation contained therein as required under
Section 74 hereof is false" –
in consonance with the general powers of COMELEC expressed in
Section 52 of the Omnibus Election Code -
"Section 52. Powers and functions of the Commission on
Elections. In addition to the powers and functions conferred
upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections for the purpose
of ensuring free, orderly and honest elections" -
and in relation to Article 69 of the Omnibus Election Code
which would authorize "any interested party" to file a
Prov Rem Rule 66 (QW) Fulltext
verified petition to deny or cancel the certificate of
candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed
by the Supreme Court per Rule 642 in an action for certiorari under
Rule 653 of the Revised Rules of Civil Procedure. Section 7, Article IX,
of the 1987 Constitution also reads –
"Each Commission shall decide by a majority vote of all its
Members any case or matter brought before it within sixty
days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last pleading,
brief, or memorandum, required by the rules of the
Commission or by the Commission itself. Unless otherwise
provided by this Constitution or by law, any decision, order,
or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides
that judicial power is vested in one Supreme Court and in such lower
courts as may be established by law which 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."
It is sufficiently clear that the petition brought up in G. R. No. 161824
was aptly elevated to, and could well be taken cognizance of by, this
Court. A contrary view could be a gross denial to our people of their
fundamental right to be fully informed, and to make a proper choice,
on who could or should be elected to occupy the highest government
post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No.
161634, invoke the provisions of Article VII, Section 4, paragraph 7, of
the 1987 Constitution in assailing the jurisdiction of the COMELEC
when it took cognizance of SPA No. 04-003 and in urging the Supreme
Court to instead take on the petitions they directly instituted before it.
The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may
promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission
in the 1935 and the 1973 Constitution to designate any tribunal to be
the sole judge of presidential and vice-presidential contests, has
constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being)
justiciable" controversies or disputes involving contests on the
elections, returns and qualifications of the President or Vice-President.
The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent
Page 2 of 25
Presidential Electoral Tribunal to Try, Hear and Decide Protests
Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the
Same." Republic Act 1793 designated the Chief Justice and the
Associate Justices of the Supreme Court to be the members of the
tribunal. Although the subsequent adoption of the parliamentary form
of government under the 1973 Constitution might have implicitly
affected Republic Act No. 1793, the statutory set-up, nonetheless,
would now be deemed revived under the present Section 4, paragraph
7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a post-
election scenario. Election contests consist of either an election
protest or a quo warranto which, although two distinct remedies,
would have one objective in view, i.e., to dislodge the winning
candidate from office. A perusal of the phraseology in Rule 12, Rule
13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal,"
promulgated by the Supreme Court en banc on 18 April 1992, would
support this premise -
"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge
of all contests relating to the election, returns, and
qualifications of the President or Vice-President of the
Philippines.
"Rule 13. How Initiated. - An election contest is initiated by
the filing of an election protest or a petition for quo
warranto against the President or Vice-President. An
election protest shall not include a petition for quo warranto.
A petition for quo warranto shall not include an election
protest.
"Rule 14. Election Protest. - Only the registered candidate for
President or for Vice-President of the Philippines who
received the second or third highest number of votes may
contest the election of the President or the Vice-President,
as the case may be, by filing a verified petition with the Clerk
of the Presidential Electoral Tribunal within thirty (30) days
after the proclamation of the winner."
The rules categorically speak of the jurisdiction of the tribunal over
contests relating to the election, returns and qualifications of the
"President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto
proceeding is generally defined as being an action against a person
who usurps, intrudes into, or unlawfully holds or exercises a public
office.5 In such context, the election contest can only contemplate a
post-election scenario. In Rule 14, only a registered candidate who
would have received either the second or third highest number of
votes could file an election protest. This rule again presupposes a
post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined
by Section 4, paragraph 7, of the 1987 Constitution, would not include
cases directly brought before it, questioning the qualifications of a
candidate for the presidency or vice-presidency before the elections
are held.
Prov Rem Rule 66 (QW) Fulltext
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et
al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled
"Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe,
Jr." would have to be dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief
historical background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by
Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to
refer to a man who shared in the administration of justice and in the
holding of an office.6Aristotle saw its significance if only to determine
the constituency of the "State," which he described as being
composed of such persons who would be adequate in number to
achieve a self-sufficient existence.7 The concept grew to include one
who would both govern and be governed, for which qualifications like
autonomy, judgment and loyalty could be expected. Citizenship was
seen to deal with rights and entitlements, on the one hand, and with
concomitant obligations, on the other.8 In its ideal setting, a citizen
was active in public life and fundamentally willing to submit his private
interests to the general interest of society.
The concept of citizenship had undergone changes over the centuries.
In the 18th century, the concept was limited, by and large, to civil
citizenship, which established the rights necessary for individual
freedom, such as rights to property, personal liberty and justice.9 Its
meaning expanded during the 19th century to include political
citizenship, which encompassed the right to participate in the exercise
of political power.10 The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of
the citizen to economic well-being and social security.11 The idea of
citizenship has gained expression in the modern welfare state as it so
developed in Western Europe. An ongoing and final stage of
development, in keeping with the rapidly shrinking global village,
might well be the internationalization of citizenship.12
The Local Setting - from Spanish Times to the Present
There was no such term as "Philippine citizens" during the Spanish
regime but "subjects of Spain" or "Spanish subjects."13 In church
records, the natives were called 'indios', denoting a low regard for the
inhabitants of the archipelago. Spanish laws on citizenship became
highly codified during the 19th century but their sheer number made
it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the
Philippine Islands except for those explicitly extended by Royal
Decrees.14
Spanish laws on citizenship were traced back to the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to whether
the law was extended to the Philippines remained to be the subject of
differing views among experts;15 however, three royal decrees were
undisputably made applicable to Spaniards in the Philippines - the
Order de la Regencia of 14 August 1841,16 the Royal Decree of 23
August 1868 specifically defining the political status of children born
in the Philippine Islands,17 and finally, the Ley Extranjera de Ultramar
Page 3 of 25
of 04 July 1870, which was expressly made applicable to the
Philippines by the Royal Decree of 13 July 1870.18
The Spanish Constitution of 1876 was never extended to the Philippine
Islands because of the express mandate of its Article 89, according to
which the provisions of the Ultramar among which this country was
included, would be governed by special laws.19
It was only the Civil Code of Spain, made effective in this jurisdiction
on 18 December 1889, which came out with the first categorical
enumeration of who were Spanish citizens. -
"(a) Persons born in Spanish territory,
"(b) Children of a Spanish father or mother, even if they were
born outside of Spain,
"(c) Foreigners who have obtained naturalization papers,
"(d) Those who, without such papers, may have become
domiciled inhabitants of any town of the Monarchy."20
The year 1898 was another turning point in Philippine history. Already
in the state of decline as a superpower, Spain was forced to so cede
her sole colony in the East to an upcoming world power, the United
States. An accepted principle of international law dictated that a
change in sovereignty, while resulting in an abrogation of all political
laws then in force, would have no effect on civil laws, which would
remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between
Spain and the United States.21 Under Article IX of the treaty, the civil
rights and political status of the native inhabitants of the territories
ceded to the United States would be determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the
territory over which Spain by the present treaty relinquishes
or cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of
property, including the right to sell or dispose of such
property or of its proceeds; and they shall also have the right
to carry on their industry, commerce, and professions, being
subject in respect thereof to such laws as are applicable to
foreigners. In case they remain in the territory they may
preserve their allegiance to the Crown of Spain by making,
before a court of record, within a year from the date of the
exchange of ratifications of this treaty, a declaration of their
decision to preserve such allegiance; in default of which
declaration they shall be held to have renounced it and to
have adopted the nationality of the territory in which they
reside.
Thus –
"The civil rights and political status of the native inhabitants
of the territories hereby ceded to the United States shall be
determined by the Congress."22
Prov Rem Rule 66 (QW) Fulltext
Upon the ratification of the treaty, and pending legislation by the
United States Congress on the subject, the native inhabitants of the
Philippines ceased to be Spanish subjects. Although they did not
become American citizens, they, however, also ceased to be "aliens"
under American laws and were thus issued passports describing them
to be citizens of the Philippines entitled to the protection of the United
States.
The term "citizens of the Philippine Islands" appeared for the first time
in the Philippine Bill of 1902, also commonly referred to as the
Philippine Organic Act of 1902, the first comprehensive legislation of
the Congress of the United States on the Philippines -
".... that all inhabitants of the Philippine Islands continuing
to reside therein, who were Spanish subjects on the 11th day
of April, 1891, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held
to be citizens of the Philippine Islands and as such entitled
to the protection of the United States, except such as shall
have elected to preserve their allegiance to the Crown of
Spain in accordance with the provisions of the treaty of
peace between the United States and Spain, signed at Paris,
December tenth eighteen hundred and ninety eight."23
Under the organic act, a "citizen of the Philippines" was one who was
an inhabitant of the Philippines, and a Spanish subject on the 11th day
of April 1899. The term "inhabitant" was taken to include 1) a native-
born inhabitant, 2) an inhabitant who was a native of Peninsular Spain,
and 3) an inhabitant who obtained Spanish papers on or before 11
April 1899.24
Controversy arose on to the status of children born in the Philippines
from 11 April 1899 to 01 July 1902, during which period no citizenship
law was extant in the Philippines. Weight was given to the view,
articulated in jurisprudential writing at the time, that the common law
principle of jus soli, otherwise also known as the principle of
territoriality, operative in the United States and England, governed
those born in the Philippine Archipelago within that period.25 More
about this later.
In 23 March 1912, the Congress of the United States made the
following amendment to the Philippine Bill of 1902 -
"Provided, That the Philippine Legislature is hereby
authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do
not come within the foregoing provisions, the natives of
other insular possession of the United States, and such other
persons residing in the Philippine Islands who would
become citizens of the United States, under the laws of the
United States, if residing therein."26
With the adoption of the Philippine Bill of 1902, the concept of
"Philippine citizens" had for the first time crystallized. The word
"Filipino" was used by William H. Taft, the first Civil Governor General
in the Philippines when he initially made mention of it in his slogan,
"The Philippines for the Filipinos." In 1916, the Philippine Autonomy
Act, also known as the Jones Law restated virtually the provisions of
Page 4 of 25
the Philippine Bill of 1902, as so amended by the Act of Congress in
1912 -
"That all inhabitants of the Philippine Islands who were
Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in said Islands,
and their children born subsequently thereto, shall be
deemed and held to be citizens of the Philippine Islands,
except such as shall have elected to preserve their allegiance
to the Crown of Spain in accordance with the provisions of
the treaty of peace between the United States and Spain,
signed at Paris December tenth, eighteen hundred and
ninety-eight and except such others as have since become
citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to
provide for the acquisition of Philippine citizenship by those
natives of the Philippine Islands who do not come within the
foregoing provisions, the natives of the insular possessions
of the United States, and such other persons residing in the
Philippine Islands who are citizens of the United States, or
who could become citizens of the United States under the
laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was
deemed to be a citizen of the Philippines as of 11 April 1899 if he was
1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on
said date, and, 3) since that date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or not
jus soli was a mode of acquiring citizenship, the 1935 Constitution
brought to an end to any such link with common law, by adopting,
once and for all, jus sanguinis or blood relationship as being the basis
of Filipino citizenship -
"Section 1, Article III, 1935 Constitution. The following are
citizens of the Philippines -
"(1) Those who are citizens of the Philippine Islands at the
time of the adoption of this Constitution
"(2) Those born in the Philippines Islands of foreign parents
who, before the adoption of this Constitution, had been
elected to public office in the Philippine Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and
upon reaching the age of majority, elect Philippine
citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken together with
existing civil law provisions at the time, which provided that women
would automatically lose their Filipino citizenship and acquire that of
their foreign husbands, resulted in discriminatory situations that
effectively incapacitated the women from transmitting their Filipino
Prov Rem Rule 66 (QW) Fulltext
citizenship to their legitimate children and required illegitimate
children of Filipino mothers to still elect Filipino citizenship upon
reaching the age of majority. Seeking to correct this anomaly, as well
as fully cognizant of the newly found status of Filipino women as
equals to men, the framers of the 1973 Constitution crafted the
provisions of the new Constitution on citizenship to reflect such
concerns -
"Section 1, Article III, 1973 Constitution - The following are
citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of
the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the
Philippines.
"(3) Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and
thirty-five.
"(4) Those who are naturalized in accordance with law."
For good measure, Section 2 of the same article also further provided
that –
"A female citizen of the Philippines who marries an alien
retains her Philippine citizenship, unless by her act or
omission she is deemed, under the law to have renounced
her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973
Constitution, except for subsection (3) thereof that aimed to correct
the irregular situation generated by the questionable proviso in the
1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of
the Philippines.
"(3) Those born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority; and
"(4) Those who are naturalized in accordance with
law."
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
Page 5 of 25
 "No person may be elected President unless he is a natural-
born citizen of the Philippines, a registered voter, able to
read and write, at least forty years of age on the day of the
election, and a resident of the Philippines for at least ten
years immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are
citizens of the Philippines from birth without having to perform any
act to acquire or perfect their Philippine citizenship."27
The date, month and year of birth of FPJ appeared to be 20 August
1939 during the regime of the 1935 Constitution. Through its history,
four modes of acquiring citizenship - naturalization, jus soli, res
judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli
and jus sanguinis, could qualify a person to being a "natural-born"
citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs29 (1912), did not last long. With the adoption of the 1935
Constitution and the reversal of Roa in Tan Chong vs. Secretary of
Labor30 (1947), jus sanguinis or blood relationship would now become
the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate
that the earliest established direct ascendant of FPJ was his paternal
grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan
F. Poe. While the record of birth of Lorenzo Pou had not been
presented in evidence, his death certificate, however, identified him to
be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at
the time of his death on 11 September 1954. The certificate of birth of
the father of FPJ, Allan F. Poe, showed that he was born on 17 May
1915 to an Español father, Lorenzo Pou, and a mestiza Español mother,
Marta Reyes. Introduced by petitioner was an "uncertified" copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita
Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and
Bessie Kelley reflected the date of their marriage to be on 16
September 1940. In the same certificate, Allan F. Poe was stated to be
twenty-five years old, unmarried, and a Filipino citizen, and Bessie
Kelley to be twenty-two years old, unmarried, and an American citizen.
The birth certificate of FPJ, would disclose that he was born on 20
August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married
to Bessie Kelly, an American citizen, twenty-one years old and married.
Considering the reservations made by the parties on the veracity of
some of the entries on the birth certificate of respondent and the
marriage certificate of his parents, the only conclusions that could be
drawn with some degree of certainty from the documents would be
that -
1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other
on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
Prov Rem Rule 66 (QW) Fulltext
5. At the time of his death on 11 September 1954, Lorenzo
Poe was 84 years old.
Would the above facts be sufficient or insufficient to establish the fact
that FPJ is a natural-born Filipino citizen? The marriage certificate of
Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death
certificate of Lorenzo Pou are documents of public record in the
custody of a public officer. The documents have been submitted in
evidence by both contending parties during the proceedings before
the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and
Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to
Bessie Kelley was submitted as Exhibit "21" for respondent. The death
certificate of Lorenzo Pou was submitted by respondent as his Exhibit
"5." While the last two documents were submitted in evidence for
respondent, the admissibility thereof, particularly in reference to the
facts which they purported to show, i.e., the marriage certificate in
relation to the date of marriage of Allan F. Poe to Bessie Kelley and
the death certificate relative to the death of Lorenzo Pou on 11
September 1954 in San Carlos, Pangasinan, were all admitted by
petitioner, who had utilized those material statements in his
argument. All three documents were certified true copies of the
originals.
Section 3, Rule 130, Rules of Court states that -
"Original document must be produced; exceptions. - When
the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original
document itself, except in the following cases:
"x x x xxx xxx
"(d) When the original is a public record in the custody of a
public office or is recorded in a public office."
Being public documents, the death certificate of Lorenzo Pou, the
marriage certificate of Allan F. Poe and Bessie Kelly, and the birth
certificate of FPJ, constitute prima facie proof of their contents. Section
44, Rule 130, of the Rules of Court provides:
"Entries in official records. Entries in official records made in
the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the
facts therein stated."
The trustworthiness of public documents and the value given to the
entries made therein could be grounded on 1) the sense of official
duty in the preparation of the statement made, 2) the penalty which
is usually affixed to a breach of that duty, 3) the routine and
disinterested origin of most such statements, and 4) the publicity of
record which makes more likely the prior exposure of such errors as
might have occurred.31
Page 6 of 25
The death certificate of Lorenzo Pou would indicate that he died on
11 September 1954, at the age of 84 years, in San Carlos, Pangasinan.
It could thus be assumed that Lorenzo Pou was born sometime in the
year 1870 when the Philippines was still a colony of Spain. Petitioner
would argue that Lorenzo Pou was not in the Philippines during the
crucial period of from 1898 to 1902 considering that there was no
existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that
Lorenzo Pou was at any other place during the same period. In his
death certificate, the residence of Lorenzo Pou was stated to be San
Carlos, Pangasinan. In the absence of any evidence to the contrary, it
should be sound to conclude, or at least to presume, that the place of
residence of a person at the time of his death was also his residence
before death. It would be extremely doubtful if the Records
Management and Archives Office would have had complete records
of all residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation
(relationship or civil status of the child to the father [or mother]) or
paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to
petitioner, the mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines
from 08 December 1889 up until the day prior to 30 August 1950 when
the Civil Code of the Philippines took effect, acknowledgment was
required to establish filiation or paternity. Acknowledgment was either
judicial (compulsory) or voluntary. Judicial or compulsory
acknowledgment was possible only if done during the lifetime of the
putative parent; voluntary acknowledgment could only be had in a
record of birth, a will, or a public document.32 Complementary to the
new code was Act No. 3753 or the Civil Registry Law expressing in
Section 5 thereof, that -
"In case of an illegitimate child, the birth certificate shall be
signed and sworn to jointly by the parents of the infant or
only by the mother if the father refuses. In the latter case, it
shall not be permissible to state or reveal in the document
the name of the father who refuses to acknowledge the
child, or to give therein any information by which such father
could be identified."
In order that the birth certificate could then be utilized to prove
voluntary acknowledgment of filiation or paternity, the certificate was
required to be signed or sworn to by the father. The failure of such
requirement rendered the same useless as being an authoritative
document of recognition.33 In Mendoza vs. Mella,34 the Court ruled -
"Since Rodolfo was born in 1935, after the registry law was
enacted, the question here really is whether or not his birth
certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his
having been voluntarily recognized. No such reliance, in our
judgment, may be placed upon it. While it contains the
Prov Rem Rule 66 (QW) Fulltext
names of both parents, there is no showing that they signed
the original, let alone swore to its contents as required in
Section 5 of Act No. 3753. For all that might have happened,
it was not even they or either of them who furnished the
data to be entered in the civil register. Petitioners say that in
any event the birth certificate is in the nature of a public
document wherein voluntary recognition of a natural child
may also be made, according to the same Article 131. True
enough, but in such a case, there must be a clear statement
in the document that the parent recognizes the child as his
or her own."
In the birth certificate of respondent FPJ, presented by both parties,
nowhere in the document was the signature of Allan F. Poe found.
There being no will apparently executed, or at least shown to have
been executed, by decedent Allan F. Poe, the only other proof of
voluntary recognition remained to be "some other public document."
In Pareja vs. Pareja,35 this Court defined what could constitute such a
document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public
documents, those executed by private individuals which
must be authenticated by notaries, and those issued by
competent public officials by reason of their office. The
public document pointed out in Article 131 as one of the
means by which recognition may be made belongs to the
first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition
of illegitimate children into voluntary, legal or compulsory. Voluntary
recognition was required to be expressedly made in a record of birth,
a will, a statement before a court of record or in any authentic writing.
Legal acknowledgment took place in favor of full blood brothers and
sisters of an illegitimate child who was recognized or judicially
declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor any
evidence to prove filiation. Unlike an action to claim legitimacy which
would last during the lifetime of the child, and might pass
exceptionally to the heirs of the child, an action to claim
acknowledgment, however, could only be brought during the lifetime
of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument,
"authentic writing," so as to be an authentic writing for purposes of
voluntary recognition, simply as being a genuine or indubitable
writing of the father. The term would include a public instrument (one
duly acknowledged before a notary public or other competent official)
or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article
173, and Article 175 provide:
"Art. 172. The filiation of legitimate children is established by
any of the following:
Page 7 of 25
 "(1) The record of birth appearing in the civil register or a
final judgment; or
"(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
"In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
"(1) The open and continuous possession of the status of a
legitimate child; or
"(2) Any other means allowed by the Rules of Court and
special laws.
"Art. 173. The action to claim legitimacy may be brought by
the child during his or her lifetime and shall be transmitted
to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of
five years within which to institute the action.
"The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.
"x x x xxx x x x.
"Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same,
evidence as legitimate children.
"The action must be brought within the same period
specified in Article 173, except when the action is based on
the second paragraph of Article 172, in which case the action
may be brought during the lifetime of the alleged parent."
The provisions of the Family Code are retroactively applied; Article 256
of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws."
Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:
"We hold that whether Jose was a voluntarily recognized
natural child should be decided under Article 278 of the Civil
Code of the Philippines. Article 2260 of that Code provides
that 'the voluntary recognition of a natural child shall take
place according to this Code, even if the child was born
before the effectivity of this body of laws' or before August
30, 1950. Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the
acknowledgment or recognition of illegitimate children is an attempt
to break away from the traditional idea of keeping well apart
Prov Rem Rule 66 (QW) Fulltext
legitimate and non-legitimate relationships within the family in favor
of the greater interest and welfare of the child. The provisions are
intended to merely govern the private and personal affairs of the
family. There is little, if any, to indicate that the legitimate or
illegitimate civil status of the individual would also affect his political
rights or, in general, his relationship to the State. While, indeed,
provisions on "citizenship" could be found in the Civil Code, such
provisions must be taken in the context of private relations, the
domain of civil law; particularly -
"Civil Law is that branch of law which has for its double
purpose the organization of the family and the regulation of
property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance,
authority and obedience among members of a family, and
those which exist among members of a society for the
protection of private interests."37
In Yañez de Barnuevo vs. Fuster,38 the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x
the laws relating to family rights and duties, or to the status,
condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in
consequence, 'all questions of a civil nature, such as those
dealing with the validity or nullity of the matrimonial bond,
the domicile of the husband and wife, their support, as
between them, the separation of their properties, the rules
governing property, marital authority, division of conjugal
property, the classification of their property, legal causes for
divorce, the extent of the latter, the authority to decree it,
and, in general, the civil effects of marriage and divorce
upon the persons and properties of the spouses, are
questions that are governed exclusively by the national law
of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best
exemplified in Article 15 of the Civil Code, stating that -
"Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad" -
that explains the need to incorporate in the code a reiteration of the
Constitutional provisions on citizenship. Similarly, citizenship is
significant in civil relationships found in different parts of the Civil
Code,39 such as on successional rights and family relations.40 In
adoption, for instance, an adopted child would be considered the child
of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his
rights under civil law41 and not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This
discriminatory attitude may be traced to the Spanish family and
property laws, which, while defining proprietary and successional
rights of members of the family, provided distinctions in the rights of
legitimate and illegitimate children. In the monarchial set-up of old
Spain, the distribution and inheritance of titles and wealth were strictly
Page 8 of 25
according to bloodlines and the concern to keep these bloodlines
uncontaminated by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified
in the Spanish Civil Code, and the invidious discrimination survived
when the Spanish Civil Code became the primary source of our own
Civil Code. Such distinction, however, remains and should remain only
in the sphere of civil law and not unduly impede or impinge on the
domain of political law.
The proof of filiation or paternity for purposes of determining his
citizenship status should thus be deemed independent from and not
inextricably tied up with that prescribed for civil law purposes. The Civil
Code or Family Code provisions on proof of filiation or paternity,
although good law, do not have preclusive effects on matters alien to
personal and family relations. The ordinary rules on evidence could
well and should govern. For instance, the matter about pedigree is not
necessarily precluded from being applicable by the Civil Code or
Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides -
"Act or Declaration about pedigree. The act or declaration of
a person deceased, or unable to testify, in respect to the
pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred
before the controversy, and the relationship between the
two persons is shown by evidence other than such act or
declaration. The word `pedigree’ includes relationship,
family genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately
connected with pedigree."
For the above rule to apply, it would be necessary that (a) the declarant
is already dead or unable to testify, (b) the pedigree of a person must
be at issue, (c) the declarant must be a relative of the person whose
pedigree is in question, (d) declaration must be made before the
controversy has occurred, and (e) the relationship between the
declarant and the person whose pedigree is in question must be
shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas,
sister of Bessie Kelley Poe submitted as Exhibit 20 before the
COMELEC, might be accepted to prove the acts of Allan F. Poe,
recognizing his own paternal relationship with FPJ, i.e, living together
with Bessie Kelley and his children (including respondent FPJ) in one
house, and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind,
presently residing in Stockton, California, U.S.A., after being
sworn in accordance with law do hereby declare that:
"1. I am the sister of the late Bessie Kelley Poe.
"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
Prov Rem Rule 66 (QW) Fulltext
"3. Fernando and Bessie Poe had a son by the name of
Ronald Allan Poe, more popularly known in the Philippines
as `Fernando Poe, Jr.,’ or `FPJ’.
"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St.
Luke's Hospital, Magdalena Street, Manila.
"x x x xxx xxx
"7. Fernando Poe Sr., and my sister Bessie, met and became
engaged while they were students at the University of the
Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.
"8. Fernando Poe, Sr., and my sister Bessie had their first child
in 1938.
"9. Fernando Poe, Sr., my sister Bessie and their first three
children, Elizabeth, Ronald, Allan and Fernando II, and myself
lived together with our mother at our family's house on
Dakota St. (now Jorge Bocobo St.), Malate until the liberation
of Manila in 1945, except for some months between 1943-
1944.
"10. Fernando Poe, Sr., and my sister, Bessie, were blessed
with four (4) more children after Ronald Allan Poe.
"x x x xxx xxx
"18. I am executing this Declaration to attest to the fact that
my nephew, Ronald Allan Poe is a natural born Filipino, and
that he is the legitimate child of Fernando Poe, Sr.
"Done in City of Stockton, California, U.S.A., this 12th day of
January 2004.
Ruby Kelley Mangahas Declarant DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the illegitimate child and
any physical residue of the long dead parent could be resorted to. A
positive match would clear up filiation or paternity. In Tijing vs. Court
of Appeals,42 this Court has acknowledged the strong weight of DNA
testing -
"Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have
now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR)
analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the
other from the father. The DNA from the mother, the alleged father
and the child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open
Page 9 of 25
to challenge. Eventually, as the appropriate case comes, courts should
not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently
obtained in aid of situations presented, since to reject said result is to
deny progress."
Petitioner’s Argument For Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen,
he could not have transmitted his citizenship to respondent FPJ, the
latter being an illegitimate child. According to petitioner, prior to his
marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted
marriage with a certain Paulita Gomez, making his subsequent
marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate
child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But
the documentary evidence introduced by no less than respondent
himself, consisting of a birth certificate of respondent and a marriage
certificate of his parents showed that FPJ was born on 20 August 1939
to a Filipino father and an American mother who were married to each
other a year later, or on 16 September 1940. Birth to unmarried
parents would make FPJ an illegitimate child. Petitioner contended
that as an illegitimate child, FPJ so followed the citizenship of his
mother, Bessie Kelley, an American citizen, basing his stand on the
ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de
Leo44 and Serra vs. Republic.45
On the above score, the disquisition made by amicus curiae Joaquin
G. Bernas, SJ, is most convincing; he states -
"We must analyze these cases and ask what the lis mota was
in each of them. If the pronouncement of the Court on jus
sanguinis was on the lis mota, the pronouncement would be
a decision constituting doctrine under the rule of stare
decisis. But if the pronouncement was irrelevant to the lis
mota, the pronouncement would not be a decision but a
mere obiter dictum which did not establish doctrine. I
therefore invite the Court to look closely into these cases.
"First, Morano vs. Vivo. The case was not about an
illegitimate child of a Filipino father. It was about a stepson
of a Filipino, a stepson who was the child of a Chinese
mother and a Chinese father. The issue was whether the
stepson followed the naturalization of the stepfather.
Nothing about jus sanguinis there. The stepson did not have
the blood of the naturalized stepfather.
"Second, Chiongbian vs. de Leon. This case was not about
the illegitimate son of a Filipino father. It was about a
legitimate son of a father who had become Filipino by
election to public office before the 1935 Constitution
pursuant to Article IV, Section 1(2) of the 1935 Constitution.
No one was illegitimate here.
"Third, Serra vs. Republic. The case was not about the
illegitimate son of a Filipino father. Serra was an illegitimate
child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his
Prov Rem Rule 66 (QW) Fulltext
mother who still needed to be naturalized. There is nothing
there about invidious jus sanguinis.
"Finally, Paa vs. Chan.46 This is a more complicated case. The
case was about the citizenship of Quintin Chan who was the
son of Leoncio Chan. Quintin Chan claimed that his father,
Leoncio, was the illegitimate son of a Chinese father and a
Filipino mother. Quintin therefore argued that he got his
citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact
the son of a Filipina mother. The Court therefore concluded
that Leoncio was not Filipino. If Leoncio was not Filipino,
neither was his son Quintin. Quintin therefore was not only
not a natural-born Filipino but was not even a Filipino.
"The Court should have stopped there. But instead it
followed with an obiter dictum. The Court said obiter that
even if Leoncio, Quintin's father, were Filipino, Quintin would
not be Filipino because Quintin was illegitimate. This
statement about Quintin, based on a contrary to fact
assumption, was absolutely unnecessary for the case. x x x It
was obiter dictum, pure and simple, simply repeating the
obiter dictum in Morano vs. Vivo.
"x x x xxx xxx
"Aside from the fact that such a pronouncement would have
no textual foundation in the Constitution, it would also
violate the equal protection clause of the Constitution not
once but twice. First, it would make an illegitimate
distinction between a legitimate child and an illegitimate
child, and second, it would make an illegitimate distinction
between the illegitimate child of a Filipino father and the
illegitimate child of a Filipino mother.
"The doctrine on constitutionally allowable distinctions was
established long ago by People vs. Cayat.47 I would grant
that the distinction between legitimate children and
illegitimate children rests on real differences. x x x But real
differences alone do not justify invidious distinction. Real
differences may justify distinction for one purpose but not
for another purpose.
"x x x What is the relevance of legitimacy or illegitimacy to
elective public service? What possible state interest can
there be for disqualifying an illegitimate child from
becoming a public officer. It was not the fault of the child
that his parents had illicit liaison. Why deprive the child of
the fullness of political rights for no fault of his own? To
disqualify an illegitimate child from holding an important
public office is to punish him for the indiscretion of his
parents. There is neither justice nor rationality in that. And if
there is neither justice nor rationality in the distinction, then
the distinction transgresses the equal protection clause and
must be reprobated."
The other amici curiae, Mr. Justice Vicente Mendoza (a former member
of this Court), Professor Ruben Balane and Dean Martin Magallona, at
Page 10 of 25
bottom, have expressed similar views. The thesis of petitioner,
unfortunately hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the
citizenship of its mother, it did so for the benefit the child. It was to
ensure a Filipino nationality for the illegitimate child of an alien father
in line with the assumption that the mother had custody, would
exercise parental authority and had the duty to support her
illegitimate child. It was to help the child, not to prejudice or
discriminate against him.
The fact of the matter – perhaps the most significant consideration –
is that the 1935 Constitution, the fundamental law prevailing on the
day, month and year of birth of respondent FPJ, can never be more
explicit than it is. Providing neither conditions nor distinctions, the
Constitution states that among the citizens of the Philippines are
"those whose fathers are citizens of the Philippines." There utterly is
no cogent justification to prescribe conditions or distinctions where
there clearly are none provided.
In Sum –
(1) The Court, in the exercise of its power of judicial review,
possesses jurisdiction over the petition in G. R. No. 161824,
filed under Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. G.R. No. 161824 assails the
resolution of the COMELEC for alleged grave abuse of
discretion in dismissing, for lack of merit, the petition in SPA
No. 04-003 which has prayed for the disqualification of
respondent FPJ from running for the position of President in
the 10th May 2004 national elections on the contention that
FPJ has committed material representation in his certificate
of candidacy by representing himself to be a natural-born
citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and
prematurity, the petitions in G. R. No. 161434 and No.
161634 both having been directly elevated to this Court in
the latter’s capacity as the only tribunal to resolve a
presidential and vice-presidential election contest under the
Constitution. Evidently, the primary jurisdiction of the Court
can directly be invoked only after, not before, the elections
are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse
of discretion has been committed by the COMELEC, it is
necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn,
depended on whether or not the father of respondent, Allan
F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of
respondent prevents him from taking after the Filipino
citizenship of his putative father. Any conclusion on the
Filipino citizenship of Lorenzo Pou could only be drawn from
the presumption that having died in 1954 at 84 years old,
Lorenzo would have been born sometime in the year 1870,
when the Philippines was under Spanish rule, and that San
Carlos, Pangasinan, his place of residence upon his death in
Prov Rem Rule 66 (QW) Fulltext
1954, in the absence of any other evidence, could have well
been his place of residence before death, such that Lorenzo
Pou would have benefited from the "en masse Filipinization"
that the Philippine Bill had effected in 1902. That citizenship
(of Lorenzo Pou), if acquired, would thereby extend to his
son, Allan F. Poe, father of respondent FPJ. The 1935
Constitution, during which regime respondent FPJ has seen
first light, confers citizenship to all persons whose fathers are
Filipino citizens regardless of whether such children are
legitimate or illegitimate.
(4) But while the totality of the evidence may not establish
conclusively that respondent FPJ is a natural-born citizen of
the Philippines, the evidence on hand still would
preponderate in his favor enough to hold that he cannot be
held guilty of having made a material misrepresentation in
his certificate of candidacy in violation of Section 78, in
relation to Section 74, of the Omnibus Election Code.
Petitioner has utterly failed to substantiate his case before
the Court, notwithstanding the ample opportunity given to
the parties to present their position and evidence, and to
prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos
vs. COMELEC,48 must not only be material, but also
deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS –
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and
Felix B. Desiderio, Jr., Petitioners, versus Commission on
Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,)
and Victorino X. Fornier, Respondents," and G. R. No.
161634, entitled "Zoilo Antonio Velez, Petitioner, versus
Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner,
versus Hon. Commission on Elections and Ronald Allan
Kelley Poe, also known as Fernando Poe, Jr.," for failure to
show grave abuse of discretion on the part of respondent
Commission on Elections in dismissing the petition in SPA
No. 04-003.
No Costs.
SO ORDERED.
#3 G.R. No. 162272 April 7, 2009
SANTIAGO C. DIVINAGRACIA, Petitioner,
vs.
CONSOLIDATED BROADCASTING SYSTEM, INC. and PEOPLE'S
BROADCASTING SERVICE, INC.,Respondents.
DECISION
TINGA, J.:
Page 11 of 25
Does the National Telecommunications Commission (NTC) have
jurisdiction over complaints seeking the cancellation of certificates of
public convenience (CPCs) and other licenses it had issued to the
holders of duly-issued legislative franchises on the ground that the
franchisees had violated the terms of their franchises? The Court, in
resolving that question, takes the opportunity to elaborate on the
dynamic behind the regulation of broadcast media in the Philippines,
particularly the interrelationship between the twin franchise and
licensing requirements.
I.
Respondents Consolidated Broadcasting System, Inc. (CBS) and
People’s Broadcasting Service, Inc. (PBS) were incorporated in 1961
and 1965, respectively. Both are involved in the operation of radio
broadcasting services in the Philippines, they being the grantees of
legislative franchises by virtue of two laws, Republic Act (R.A.) No. 7477
and R.A. No. 7582. R.A. No. 7477, enacted on 5 May 1992, granted PBS
a legislative franchise to construct, install, maintain and operate radio
and television stations within the Philippines for a period of 25 years.
R.A. No. 7582, enacted on 27 May 1992, extended CBS’s previous
legislative franchise1 to operate radio stations for another 25 years.
The CBS and PBS radio networks are two of the three networks that
comprise the well-known "Bombo Radyo Philippines."2
Section 9 of R.A. No. 7477 and Section 3 of R.A. No. 7582 contain a
common provision predicated on the "constitutional mandate to
democratize ownership of public utilities."3 The common provision
states:
SEC. 9. Democratization of ownership.― In compliance with the
constitutional mandate to democratize ownership of public utilities,
the herein grantee shall make public offering through the stock
exchanges of at least thirty percent (30%) of its common stocks within
a period of three (3) years from the date of effectivity of this Act:
Provided, That no single person or entity shall be allowed to own more
than five percent (5%) of the stock offerings.4
It further appears that following the enactment of these franchise laws,
the NTC issued four (4) Provisional Authorities to PBS and six (6)
Provisional Authorities to CBS, allowing them to install, operate and
maintain various AM and FM broadcast stations in various locations
throughout the nation.5 These Provisional Authorities were issued
between 1993 to 1998, or after the enactment of R.A. No. 7477 and
R.A. No. 7582.
Petitioner Santiago C. Divinagracia6 filed two complaints both dated 1
March 1999 with the NTC, respectively lodged against PBS 7 and
CBS.8 He alleged that he was "the actual and beneficial owner of
Twelve percent (12%) of the shares of stock" of PBS and CBS
separately,9 and that despite the provisions in R.A. No. 7477 and R.A.
No. 7582 mandating the public offering of at least 30% of the common
stocks of PBS and CBS, both entities had failed to make such offering.
Thus, Divinagracia commonly argued in his complaints that the failure
on the part of PBS and CBS "to comply with the mandate of their
legislative franchise is a misuse of the franchise conferred upon it by
law and it continues to exercise its franchise in contravention of the
law to the detriment of the general public and of complainant who are
Prov Rem Rule 66 (QW) Fulltext
unable to enjoy the benefits being offered by a publicly listed
company."10 He thus prayed for the cancellation of all the Provisional
Authorities or CPCs of PBS and CBS on account of the alleged violation
of the conditions set therein, as well as in its legislative franchises.11
On 1 August 2000, the NTC issued a consolidated decision dismissing
both complaints.12 While the NTC posited that it had full jurisdiction
to revoke or cancel a Provisional Authority or CPC for violations or
infractions of the terms and conditions embodied therein,13 it held
that the complaints actually constituted collateral attacks on the
legislative franchises of PBS and CBS since the sole issue for
determination was whether the franchisees had violated the mandate
to democratize ownership in their respective legislative franchises. The
NTC ruled that it was not competent to render a ruling on that issue,
the same being more properly the subject of an action for quo
warranto to be commenced by the Solicitor General in the name of
the Republic of the Philippines, pursuant to Rule 66 of the Rules of
Court.14
After the NTC had denied Divinagracia’s motion for
reconsideration,15 he filed a petition for review under Rule 43 of the
Rules of Court with the Court of Appeals.16 On 18 February 2004, the
Court of Appeals rendered a decision17upholding the NTC. The
appellate court agreed with the earlier conclusion that the complaints
were indeed a collateral attack on the legislative franchises of CBS and
PBS and that a quo warranto action was the proper mode to thresh
out the issues raised in the complaints.
Hence this petition, which submits as the principal issue, whether the
NTC, with its retinue of regulatory powers, is powerless to cancel
Provisional Authorities and Certificates of Public Convenience it issued
to legislative franchise-holders. That central issue devolves into
several narrower arguments, some of which hinge on the authority of
the NTC to cancel the very Provisional Authorities and CPCs which it
is empowered to issue, as distinguished from the legislative franchise
itself, the cancellation of which Divinagracia points out was not the
relief he had sought from the NTC. Questions are raised as to whether
the complaints did actually constitute a collateral attack on the
legislative franchises.
Yet this case ultimately rests to a large degree on fundamentals.
Divinagracia’s case rotates on the singular thesis that the NTC has the
power to cancel Provisional Authorities and CPCs, or in effect, the
power to cancel the licenses that allow broadcast stations to operate.
The NTC, in its assailed Decision, expressly admits that it has such
power even as it refrained from exercising the same.18 The Court has
yet to engage in a deep inquiry into the question of whether the NTC
has the power to cancel the operating licenses of entities to whom
Congress has issued franchises to operate broadcast stations,
especially on account of an alleged violation of the terms of their
franchises. This is the opportune time to examine the issue.
II.
To fully understand the scope and dimensions of the regulatory realm
of the NTC, it is essential to review the legal background of the
regulation process. As operative fact, any person or enterprise which
wishes to operate a broadcast radio or television station in the
Page 12 of 25
Philippines has to secure a legislative franchise in the form of a law
passed by Congress, and thereafter a license to operate from the NTC.
The franchise requirement traces its genesis to Act No. 3846,
otherwise known as the Radio Control Act, enacted in 1931.19 Section
1 thereof provided that "[n]o person, firm, company, association or
corporation shall construct, install, establish, or operate x x x a radio
broadcasting station, without having first obtained a franchise
therefor from the National Assembly x x x"20 Section 2 of the law
prohibited the construction or installation of any station without a
permit granted by the Secretary of Public Works and Communication,
and the operation of such station without a license issued by the same
Department Secretary.21 The law likewise empowered the Secretary of
Public Works and Communication "to regulate the establishment, use,
and operation of all radio stations and of all forms of radio
communications and transmissions within the Philippine Islands and
to issue such rules and regulations as may be necessary."22
Noticeably, our Radio Control Act was enacted a few years after the
United States Congress had passed the Radio Act of 1927. American
broadcasters themselves had asked their Congress to step in and
regulate the radio industry, which was then in its infancy. The absence
of government regulation in that market had led to the emergence of
hundreds of radio broadcasting stations, each using frequencies of
their choice and changing frequencies at will, leading to literal chaos
on the airwaves. It was the Radio Act of 1927 which introduced a
licensing requirement for American broadcast stations, to be overseen
eventually by the Federal Communications Commission (FCC).23
This pre-regulation history of radio broadcast stations illustrates the
continuing necessity of a government role in overseeing the broadcast
media industry, as opposed to other industries such as print media
and the Internet.24Without regulation, the result would be a free-for-
all market with rival broadcasters able with impunity to sabotage the
use by others of the airwaves.25 Moreover, the airwaves themselves
the very medium utilized by broadcast―are by their very nature not
susceptible to appropriation, much less be the object of any claim of
private or exclusive ownership. No private individual or enterprise has
the physical means, acting alone to actualize exclusive ownership and
use of a particular frequency. That end, desirable as it is among
broadcasters, can only be accomplished if the industry itself is
subjected to a regime of government regulation whereby
broadcasters receive entitlement to exclusive use of their respective
or particular frequencies, with the State correspondingly able by force
of law to confine all broadcasters to the use of the frequencies
assigned to them.
Still, the dominant jurisprudential rationale for state regulation of
broadcast media is more sophisticated than a mere recognition of a
need for the orderly administration of the airwaves. After all, a united
broadcast industry can theoretically achieve that goal through
determined self-regulation. The key basis for regulation is rooted in
empiricism – "that broadcast frequencies are a scarce resource whose
use could be regulated and rationalized only by the Government." This
concept was first introduced in jurisprudence in the U.S. case of Red
Lion v. Federal Communications Commission.26
Prov Rem Rule 66 (QW) Fulltext
Red Lion enunciated the most comprehensive statement of the
necessity of government oversight over broadcast media. The U.S.
Supreme Court observed that within years from the introduction of
radio broadcasting in the United States, "it became apparent that
broadcast frequencies constituted a scarce resource whose use could
be regulated and rationalized only by the Government… without
government control, the medium would be of little use because of the
cacophony of competing voices, none of which could be clearly and
predictably heard." The difficulties posed by spectrum scarcity was
concretized by the U.S. High Court in this manner:
Scarcity is not entirely a thing of the past. Advances in technology,
such as microwave transmission, have led to more efficient utilization
of the frequency spectrum, but uses for that spectrum have also grown
apace. Portions of the spectrum must be reserved for vital uses
unconnected with human communication, such as radio-navigational
aids used by aircraft and vessels. Conflicts have even emerged
between such vital functions as defense preparedness and
experimentation in methods of averting midair collisions through
radio warning devices. "Land mobile services" such as police,
ambulance, fire department, public utility, and other communications
systems have been occupying an increasingly crowded portion of the
frequency spectrum and there are, apart from licensed amateur radio
operators' equipment, 5,000,000 transmitters operated on the
"citizens' band" which is also increasingly congested. Among the
various uses for radio frequency space, including marine, aviation,
amateur, military, and common carrier users, there are easily enough
claimants to permit use of the whole with an even smaller allocation
to broadcast radio and television uses than now exists.(citations
omitted)27
After interrelating the premise of scarcity of resources with the First
Amendment rights of broadcasters, Red Lion concluded that
government regulation of broadcast media was a necessity:
Where there are substantially more individuals who want to broadcast
than there are frequencies to allocate, it is idle to posit an
unabridgeable First Amendment right to broadcast comparable to the
right of every individual to speak, write, or publish. If 100 persons want
broadcast [395 U.S. 367, 389] licenses but there are only 10
frequencies to allocate, all of them may have the same "right" to a
license; but if there is to be any effective communication by radio, only
a few can be licensed and the rest must be barred from the airwaves.
It would be strange if the First Amendment, aimed at protecting and
furthering communications, prevented the Government from making
radio communication possible by requiring licenses to broadcast and
by limiting the number of licenses so as not to overcrowd the
spectrum.
This has been the consistent view of the Court. Congress
unquestionably has the power to grant and deny licenses and to
eliminate existing stations. No one has a First Amendment right to a
license or to monopolize a radio frequency; to deny a station license
because "the public interest" requires it "is not a denial of free speech."
By the same token, as far as the First Amendment is concerned those
who are licensed stand no better than those to whom licenses are
refused. A license permits broadcasting, but the licensee has no
Page 13 of 25
constitutional right to be the one who holds the license or to
monopolize a radio frequency to the exclusion of his fellow citizens.
There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary with obligations
to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from
the airwaves.28
xxxx
Rather than confer frequency monopolies on a relatively small number
of licensees, in a Nation of 200,000,000, the Government could surely
have decreed that each frequency should be shared among all or
some of those who wish to use it, each being assigned a portion of
the broadcast day or the broadcast week. The ruling and regulations
at issue here do not go quite so far. They assert that under specified
circumstances, a licensee must offer to make available a reasonable
amount of broadcast time to those who have a view different from
that which has already been expressed on his station. The expression
of a political endorsement, or of a personal attack while dealing with
a controversial public issue, simply triggers this time sharing. As we
have said, the First Amendment confers no right on licensees to
prevent others from broadcasting on "their" frequencies and no right
to an unconditional monopoly of a scarce resource which the
Government has denied others the right to use.
In terms of constitutional principle, and as enforced sharing of a scarce
resource, the personal attack and political editorial rules are
indistinguishable from the equal-time provision of §315, a specific
enactment of Congress requiring stations to set aside reply time under
specified circumstances and to which the fairness doctrine and these
constituent regulations are important complements. That provision,
which has been part of the law since 1927, Radio Act of 1927, §18, 44
Stat. 1170, has been held valid by this Court as an obligation of the
licensee relieving him of any power in any way to prevent or censor
the broadcast, and thus insulating him from liability for defamation.
The constitutionality of the statute under the First Amendment was
unquestioned.(citations omitted)29
As made clear in Red Lion, the scarcity of radio frequencies made it
necessary for the government to step in and allocate frequencies to
competing broadcasters. In undertaking that function, the
government is impelled to adjudge which of the competing applicants
are worthy of frequency allocation. It is through that role that it
becomes legally viable for the government to impose its own values
and goals through a regulatory regime that extends beyond the
assignation of frequencies, notwithstanding the free expression
guarantees enjoyed by broadcasters. As the government is put in a
position to determine who should be worthy to be accorded the
privilege to broadcast from a finite and limited spectrum, it may
impose regulations to see to it that broadcasters promote the public
good deemed important by the State, and to withdraw that privilege
from those who fall short of the standards set in favor of other worthy
applicants.
Such conditions are peculiar to broadcast media because of the
scarcity of the airwaves. Indeed, any attempt to impose such a
Prov Rem Rule 66 (QW) Fulltext
regulatory regime on a medium that is not belabored under similar
physical conditions, such as print media, will be clearly antithetical to
democratic values and the free expression clause. This Court, which
has adopted the "scarcity of resources" doctrine in cases such as
Telecom. & Broadcast Attys. of the Phils., Inc. v.
COMELEC,30 emphasized the distinction citing Red Lion:
Petitioners complain that B.P. Blg. 881, §92 singles out radio and
television stations to provide free air time. They contend that
newspapers and magazines are not similarly required as, in fact, in
Philippine Press Institute v. COMELEC we upheld their right to the
payment of just compensation for the print space they may provide
under §90.
The argument will not bear analysis. It rests on the fallacy that
broadcast media are entitled to the same treatment under the free
speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however,
which justify their differential treatment for free speech purposes.
Because of the physical limitations of the broadcast spectrum, the
government must, of necessity, allocate broadcast frequencies to
those wishing to use them. There is no similar justification for
government allocation and regulation of the print media.
In the allocation of limited resources, relevant conditions may validly
be imposed on the grantees or licensees. The reason for this is that,
as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not
do in the case of the print media. To require the radio and television
broadcast industry to provide free air time for the COMELEC Time is a
fair exchange for what the industry gets.31
Other rationales may have emerged as well validating state regulation
of broadcast media,32 but the reality of scarce airwaves remains the
primary, indisputable and indispensable justification for the
government regulatory role. The integration of the scarcity doctrine
into the jurisprudence on broadcast media illustrates how the
libertarian ideal of the free expression clause may be tempered and
balanced by actualities in the real world while preserving the core
essence of the constitutional guarantee. Indeed, without government
regulation of the broadcast spectrum, the ability of broadcasters to
clearly express their views would be inhibited by the anarchy of
competition. Since the airwaves themselves are not susceptible to
physical appropriation and private ownership, it is but indispensable
that the government step in as the guardian of the spectrum.
Reference to the scarcity doctrine is necessary to gain a full
understanding of the paradigm that governs the state regulation of
broadcast media. That paradigm, as it exists in the United States, is
contextually similar to our own, except in one very crucial regard – the
dual franchise/license requirements we impose.
III.
Recall that the Radio Control Act specifically required the obtention of
a legislative franchise for the operation of a radio station in the
Philippines. When the Public Service Act was enacted in 1936, the
Public Service Commission (PSC) was vested with jurisdiction over
Page 14 of 25
"public services," including over "wire or wireless broadcasting
stations."33However, among those specifically exempted from the
regulatory reach of the PSC were "radio companies, except with
respect to the fixing of rates."34 Thus, following the Radio Control Act,
the administrative regulation of "radio companies" remained with the
Secretary of Public Works and Communications. It appears that
despite the advent of commercial television in the 1950s, no
corresponding amendment to either the Radio Control Act or the
Public Service Act was passed to reflect that new technology then.
Shortly after the 1972 declaration of martial law, President Marcos
issued Presidential Decree (P.D.) No. 1, which allocated to the Board
of Communications the authority to issue CPCs for the operation of
radio and television broadcasting systems and to grant permits for the
use of radio frequencies for such broadcasting systems. In 1974,
President Marcos promulgated Presidential Decree No. 576-A,
entitled "Regulating the Ownership and Operation of Radio and
Television Stations and for other Purposes." Section 6 of that law
reads:
Section 6. All franchises, grants, licenses, permits, certificates or other
forms of authority to operate radio or television broadcasting systems
shall terminate on December 31, 1981. Thereafter, irrespective of any
franchise, grants, license, permit, certificate or other forms of authority
to operate granted by any office, agency or person, no radio or
television station shall be authorized to operated without the
authority of the Board of Communications and the Secretary of Public
Works and Communications or their successors who have the right
and authority to assign to qualified parties frequencies, channels or
other means of identifying broadcasting systems; Provided, however,
that any conflict over, or disagreement with a decision of the
aforementioned authorities may be appealed finally to the Office of
the President within fifteen days from the date the decision is received
by the party in interest.
A few years later, President Marcos promulgated Executive Order
(E.O.) No. 546, establishing among others the National
Telecommunications Commission. Section 15 thereof enumerates the
various functions of the NTC.
Section 15. Functions of the Commission.― The Commission shall
exercise the following functions:
a. Issue Certificate of Public Convenience for the operation
of communications utilities and services, radio
communications systems, wire or wireless telephone or
telegraph systems, radio and television broadcasting system
and other similar public utilities;
b. Establish, prescribe and regulate areas of operation of
particular operators of public service communications; and
determine and prescribe charges or rates pertinent to the
operation of such public utility facilities and services except
in cases where charges or rates are established by
international bodies or associations of which the Philippines
is a participating member or by bodies recognized by the
Philippine Government as the proper arbiter of such charges
or rates;
Prov Rem Rule 66 (QW) Fulltext
c. Grant permits for the use of radio frequencies for wireless
telephone and telegraph systems and radio communication
systems including amateur radio stations and radio and
television broadcasting systems;
d. Sub-allocate series of frequencies of bands allocated by
the International Telecommunications Union to the specific
services;
e. Establish and prescribe rules, regulations, standards,
specifications in all cases related to the issued Certificate of
Public Convenience and administer and enforce the same;
f. Coordinate and cooperate with government agencies and
other entities concerned with any aspect involving
communications with a view to continuously improve the
communications service in the country;
g. Promulgate such rules and regulations, as public safety
and interest may require, to encourage a larger and more
effective use of communications, radio and television
broadcasting facilities, and to maintain effective competition
among private entities in these activities whenever the
Commission finds it reasonably feasible;
h. Supervise and inspect the operation of radio stations and
telecommunications facilities;
i. Undertake the examination and licensing of radio
operators;
j. Undertake, whenever necessary, the registration of radio
transmitters and transceivers; and
k. Perform such other functions as may be prescribed by law.
These enactments were considered when in 2003 the Court
definitively resolved that the operation of a radio or television station
does require a congressional franchise. In Associated Communications
& Wireless Services v. NTC,35 the Court took note of the confusion
then within the broadcast industry as to whether the franchise
requirement first ordained in the 1931 Radio Control Act remained
extant given the enactment of P.D. No. 576-A in 1974 and E.O. No. 546
in 1979. Notably, neither law had specifically required legislative
franchises for the operation of broadcast stations. Nonetheless, the
Court noted that Section 1 of P.D. No. 576-A had expressly referred to
the franchise requirement in stating that "[n]o radio station or
television channel may obtain a franchise unless it has sufficient
capital on the basis of equity for its operation for at least one year…
."36 Section 6 of that law made a similar reference to the franchise
requirement.37 From those references, the Court concluded that the
franchise requirement under the Radio Control Act was not repealed
by P.D. No. 576-A.38
Turning to E.O. No. 546, the Court arrived at a similar conclusion,
despite a Department of Justice Opinion stating that the 1979
enactment had dispensed with the congressional franchise
Page 15 of 25
requirement. The Court clarified that the 1989 ruling in Albano v.
Reyes, to the effect that "franchises issued by Congress are not
required before each and every public utility may operate" did not
dispense with the franchise requirement insofar as broadcast stations
are concerned.
Our ruling in Albano that a congressional franchise is not required
before "each and every public utility may operate" should be viewed
in its proper light. Where there is a law such as P.D. No. 576-A which
requires a franchise for the operation of radio and television stations,
that law must be followed until subsequently repealed. As we have
earlier shown, however, there is nothing in the subsequent E.O. No.
546 which evinces an intent to dispense with the franchise
requirement. In contradistinction with the case at bar, the law
applicable in Albano, i.e., E.O. No. 30, did not require a franchise for
the Philippine Ports Authority to take over, manage and operate the
Manila International Port Complex and undertake the providing of
cargo handling and port related services thereat. Similarly, in
Philippine Airlines, Inc. v. Civil Aeronautics Board, et al., we ruled that
a legislative franchise is not necessary for the operation of domestic
air transport because "there is nothing in the law nor in the
Constitution which indicates that a legislative franchise is an
indispensable requirement for an entity to operate as a domestic air
transport operator." Thus, while it is correct to say that specified
agencies in the Executive Branch have the power to issue authorization
for certain classes of public utilities, this does not mean that the
authorization or CPC issued by the NTC dispenses with the
requirement of a franchise as this is clearly required under P.D. No.
576-A.39
The Court further observed that Congress itself had accepted it as a
given that a legislative franchise is still required to operate a
broadcasting station in the Philippines.
That the legislative intent is to continue requiring a franchise for the
operation of radio and television broadcasting stations is clear from
the franchises granted by Congress after the effectivity of E.O. No. 546
in 1979 for the operation of radio and television stations. Among these
are: (1) R.A. No. 9131 dated April 24, 2001, entitled "An Act Granting
the Iddes Broadcast Group, Inc., a Franchise to Construct, Install,
Establish, Operate and Maintain Radio and Television Broadcasting
Stations in the Philippines"; (2) R.A. No. 9148 dated July 31, 2001,
entitled "An Act Granting the Hypersonic Broadcasting Center, Inc., a
Franchise to Construct, Install, Establish, Operate and Maintain Radio
Broadcasting Stations in the Philippines;" and (3) R.A. No. 7678 dated
February 17, 1994, entitled "An Act Granting the Digital
Telecommunication Philippines, Incorporated, a Franchise to Install,
Operate and Maintain Telecommunications Systems Throughout the
Philippines." All three franchises require the grantees to secure a
CPCN/license/permit to construct and operate their stations/systems.
Likewise, the Tax Reform Act of 1997 provides in Section 119 for tax
on franchise of radio and/or television broadcasting companies x x x 40
Associated Communications makes clear that presently broadcast
stations are still required to obtain a legislative franchise, as they have
been so since the passage of the Radio Control Act in 1931. By virtue
of this requirement, the broadcast industry falls within the ambit of
Section 11, Article XII of the 1987 Constitution, the one constitutional
provision
Prov Rem Rule 66 (QW) Fulltext
concerned with the grant of franchises in the Philippines.41 The
requirement of a legislative franchise likewise differentiates the
Philippine broadcast industry from that in America, where there is no
need to secure a franchise from the U.S. Congress.
It is thus clear that the operators of broadcast stations in the
Philippines must secure a legislative franchise, a requirement imposed
by the Radio Control Act of 1931 and accommodated under the 1987
Constitution. At the same time, the Court in Associated
Communications referred to another form of "permission" required of
broadcast stations, that is the CPC issued by the NTC. What is the
source of such requirement?
The Radio Control Act had also obliged radio broadcast stations to
secure a permit from the Secretary of Commerce and Industry42 prior
to the construction or installation of any station.43 Said Department
Secretary was also empowered to regulate "the establishment, use
and operation of all radio stations and of all forms of radio
communications and
transmission within the Philippines."44 Among the specific powers
granted to the Secretary over radio stations are the approval or
disapproval of any application for the construction, installation,
establishment or operation of a radio station45 and the approval or
disapproval of any application for renewal of station or operation
license.46
As earlier noted, radio broadcasting companies were exempted from
the jurisdiction of the defunct Public Service Commission except with
respect to their rates; thus, they did not fall within the same regulatory
regime as other public services, the regime which was characterized
by the need for CPC or CPCN. However, following the Radio Control
Act, it became clear that radio broadcast companies need to obtain a
similar license from the government in order to operate, at that time
from the Department of Public Works and Communications.
Then, as earlier noted, in 1972, President Marcos through P.D. No. 1,
transferred to the Board of Communications the function of issuing
CPCs for the operation of radio and television broadcasting systems,
as well as the granting of permits for the use of radio frequencies for
such broadcasting systems. With the creation of the NTC, through E.O.
No. 546 in 1979, that agency was vested with the power to "[i]ssue
certificate[s] of public convenience for the operation of… radio and
television broadcasting system[s]."47 That power remains extant and
undisputed to date.
This much thus is clear. Broadcast and television stations are required
to obtain a legislative franchise, a requirement imposed by the Radio
Control Act and affirmed by our ruling in Associated Broadcasting.
After securing their legislative franchises, stations are required to
obtain CPCs from the NTC before they can operate their radio or
television broadcasting systems. Such requirement while traceable
also to the Radio Control Act, currently finds its basis in E.O. No. 546,
the law establishing the NTC.
From these same legal premises, the next and most critical question is
whether the NTC has the power to cancel the CPCs it has issued to
legislative franchisees.
Page 16 of 25
IV.
The complexities of our dual franchise/license regime for broadcast
media should be understood within the context of separation of
powers. The right of a particular entity to broadcast over the airwaves
is established by law —i.e., the legislative franchise — and determined
by Congress, the branch of government tasked with the creation of
rights and obligations. As with all other laws passed by Congress, the
function of the executive branch of government, to which the NTC
belongs, is the implementation of the law. In broad theory, the legal
obligation of the NTC once Congress has established a legislative
franchise for a broadcast media station is to facilitate the operation by
the franchisee of its broadcast stations. However, since the public
administration of the airwaves is a requisite for the operation of a
franchise and is moreover a highly technical function, Congress has
delegated to the NTC the task of administration over the broadcast
spectrum, including the determination of available bandwidths and
the allocation of such available bandwidths among the various
legislative franchisees. The licensing power of the NTC thus arises from
the necessary delegation by Congress of legislative power geared
towards the orderly exercise by franchisees of the rights granted them
by Congress.
Congress may very well in its wisdom impose additional obligations
on the various franchisees and accordingly delegate to the NTC the
power to ensure that the broadcast stations comply with their
obligations under the law. Because broadcast media enjoys a lesser
degree of free expression protection as compared to their
counterparts in print, these legislative restrictions are generally
permissible under the Constitution. Yet no enactment of Congress
may contravene the Constitution and its Bill of Rights; hence, whatever
restrictions are imposed by Congress on broadcast media franchisees
remain susceptible to judicial review and analysis under the
jurisprudential framework for scrutiny of free expression cases
involving the broadcast media.
The restrictions enacted by Congress on broadcast media franchisees
have to pass the mettle of constitutionality. On the other hand, the
restrictions imposed by an administrative agency such as the NTC on
broadcast media franchisees will have to pass not only the test of
constitutionality, but also the test of authority and legitimacy, i.e.,
whether such restrictions have been imposed in the exercise of duly
delegated legislative powers from Congress. If the restriction or
sanction imposed by the administrative agency cannot trace its origin
from legislative delegation, whether it is by virtue of a specific grant
or from valid delegation of rule-making power to the administrative
agency, then the action of such administrative agency cannot be
sustained. The life and authority of an administrative agency emanates
solely from an Act of Congress, and its faculties confined within the
parameters set by the legislative branch of government.
We earlier replicated the various functions of the NTC, as established
by E.O. No. 546. One can readily notice that even as the NTC is vested
with the power to issue CPCs to broadcast stations, it is not expressly
vested with the power to cancel such CPCs, or otherwise empowered
to prevent broadcast stations with duly issued franchises and CPCs
from operating radio or television stations.1avvphi1
Prov Rem Rule 66 (QW) Fulltext
In contrast, when the Radio Control Act of 1931 maintained a similar
requirement for radio stations to obtain a license from a government
official (the Secretary of Commerce and Industry), it similarly
empowered the government, through the Secretary of Public Works
and Communications, to suspend or revoke such license, as indicated
in Section 3(m):
Section 3. The Secretary of Public Works and Communications is
hereby empowered, to regulate the construction or manufacture,
possession, control, sale and transfer of radio transmitters or
transceivers (combination transmitter-receiver) and the
establishment, use, the operation of all radio stations and of all form
of radio communications and transmissions within the Philippines. In
addition to the above he shall have the following specific powers and
duties:
(m) He may, at his direction bring criminal action against violators of
the radio laws or the regulations and confiscate the radio apparatus
in case of illegal operation; or simply suspend or revoke the offender’s
station or operator licenses or refuse to renew such licenses; or just
reprimand and warn the offenders;48
Section 3(m) begets the question – did the NTC retain the power
granted in 1931 to the Secretary of Public Works and Communications
to "x x x suspend or revoke the offender’s station or operator licenses
or refuse to renew such licenses"? We earlier adverted to the statutory
history. The enactment of the Public Service Act in 1936 did not
deprive the Secretary of regulatory jurisdiction over radio stations,
which included the power to impose fines. In fact, the Public Service
Commission was precluded from exercising such jurisdiction, except
with respect to the fixing of rates.
Then, in 1972, the regulatory authority over broadcast media was
transferred to the Board of Communications by virtue of P. D. No. 1,
which adopted, approved, and made as part of the law of the land the
Integrated Reorganization Plan which was prepared by the
Commission on Reorganization.49 Among the cabinet departments
affected by the plan was the Department of Public Works and
Communications, which was now renamed the Department of Public
Works, Transportation and Communication.50 New regulatory boards
under the administrative supervision of the Department were created,
including the Board of Communications.51
The functions of the Board of Communications were enumerated in
Part X, Chapter I, Article III, Sec. 5 of the Integrated Reorganization
Plan.52 What is noticeably missing from these enumerated functions
of the Board of Communications is the power to revoke or cancel
CPCs, even as the Board was vested the power to issue the same. That
same pattern held true in 1976, when the Board of Communications
was abolished by E.O. No. 546.53Said executive order, promulgated by
then President Marcos in the exercise of his legislative powers, created
the NTC but likewise withheld from it the authority to cancel licenses
and CPCs, even as it was empowered to issue CPCs. Given the very
specific functions allocated by law to the NTC, it would be very difficult
to recognize any intent to allocate to the Commission such regulatory
functions previously granted to the Secretary of Public Works and
Communications, but not included in the exhaustive list of functions
enumerated in Section 15.
Page 17 of 25
Certainly, petitioner fails to point to any provision of E.O. No. 546
authorizing the NTC to cancel licenses. Neither does he cite any
provision under P.D. No. 1 or the Radio Control Act, even if Section
3(m) of the latter law provides at least, the starting point of a fair
argument. Instead, petitioner relies on the power granted to the Public
Service Commission to revoke CPCs or CPCNs under Section 16(m) of
the Public Service Act.54 That argument has been irrefragably refuted
by Section 14 of the Public Service Act, and by jurisprudence, most
especially RCPI v. NTC.55As earlier noted, at no time did radio
companies fall under the jurisdiction of the Public Service Commission
as they were expressly excluded from its mandate under Section 14.
In addition, the Court ruled in RCPI that since radio companies,
including broadcast stations and telegraphic agencies, were never
under the jurisdiction of the Public Service Commission except as to
rate-fixing, that Commission’s authority to impose fines did not carry
over to the NTC even while the other regulatory agencies that
emanated from the Commission did retain the previous authority their
predecessor had exercised.56 No provision in the Public Service Act
thus can be relied upon by the petitioner to claim that the NTC has
the authority to cancel CPCs or licenses.
It is still evident that E.O. No. 546 provides no explicit basis to assert
that the NTC has the power to cancel the licenses or CPCs it has duly
issued, even as the government office previously tasked with the
regulation of radio stations, the Secretary of Public Works and
Communications, previously possessed such power by express
mandate of law. In order to sustain petitioner’s premise, the Court will
be unable to rely on an unequivocally current and extant provision of
law that justifies the NTC’s power to cancel CPCs. Petitioner suggests
that since the NTC has the power to issue CPCs, it necessarily has the
power to revoke the same. One might also argue that through the
general rule-making power of the NTC, we can discern a right of the
NTC to cancel CPCs.
We must be mindful that the issue for resolution is not a run-of-the-
mill matter which would be settled with ease with the application of
the principles of statutory construction. It is at this juncture that the
constitutional implications of this case must ascend to preeminence.
A.
It is beyond question that respondents, as with all other radio and
television broadcast stations, find shelter in the Bill of Rights,
particularly Section 3, Article III of the Constitution. At the same time,
as we have labored earlier to point out, broadcast media stands, by
reason of the conditions of scarcity, within a different tier of protection
from print media, which unlike broadcast, does not have any
regulatory interaction with the government during its operation.
Still, the fact that state regulation of broadcast media is
constitutionally justified does not mean that its practitioners are
precluded from invoking Section 3, Article III of the Constitution in
their behalf. Far from it. Our democratic way of life is actualized by the
existence of a free press, whether print media or broadcast media. As
with print media, free expression through broadcast media is
protected from prior restraint or subsequent punishment. The
franchise and licensing requirements are mainly impositions of the
laws of physics which would stand to periodic reassessment as
Prov Rem Rule 66 (QW) Fulltext
technology advances. The science of today renders state regulation as
a necessity, yet this should not encumber the courts from
accommodating greater freedoms to broadcast media when doing so
would not interfere with the existing legitimate state interests in
regulating the industry.
In FCC v. League of Women Voters of California,57 the U.S. Supreme
Court reviewed a law prohibiting noncommercial broadcast stations
that received funding from a public corporation from "engaging in
editorializing." The U.S. Supreme Court acknowledged the
differentiated First Amendment standard of review that applied to
broadcast media. Still, it struck down the restriction, holding that "[the]
regulation impermissibly sweeps within its prohibition a wide range of
speech by wholly private stations on topics that do not take a directly
partisan stand or that have nothing whatever to do with federal, state,
or local government."58 We are similarly able to maintain fidelity to the
fundamental rights of broadcasters even while upholding the rationale
behind the regulatory regime governing them.
Should petitioner’s position that the NTC has the power to cancel
CPCs or licenses it has issued to broadcast stations although they are
in the first place empowered by their respective franchise to exercise
their rights to free expression and as members of a free press, be
adopted broadcast media would be encumbered by another layer of
state restrictions. As things stand, they are already required to secure
a franchise from Congress and a CPC from the NTC in order to operate.
Upon operation, they are obliged to comply with the various
regulatory issuances of the NTC, which has the power to impose fees
and fines and other mandates it may deem fit to prescribe in the
exercise of its rule-making power.
The fact that broadcast media already labors under this concededly
valid regulatory framework necessarily creates inhibitions on its
practitioners as they operate on a daily basis. Newspapers are able to
print out their daily editions without fear that a government agency
such as the NTC will be able to suspend their publication or fine them
based on their content. Broadcast stations do already operate with
that possibility in mind, and that circumstance ineluctably restrains its
content, notwithstanding the constitutional right to free expression.
However, the cancellation of a CPC or license to operate of a broadcast
station, if we recognize that possibility, is essentially a death sentence,
the most drastic means to inhibit a broadcast media practitioner from
exercising the constitutional right to free speech, expression and of
the press.
This judicial philosophy aligns well with the preferred mode of scrutiny
in the analysis of cases with dimensions of the right to free expression.
When confronted with laws dealing with freedom of the mind or
restricting the political process, of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection, the Court
has deemed it appropriate to apply "strict scrutiny" when assessing
the laws involved or the legal arguments pursued that would diminish
the efficacy of such constitutional right. The assumed authority of the
NTC to cancel CPCs or licenses, if sustained, will create a permanent
atmosphere of a less free right to express on the part of broadcast
media. So that argument could be sustained, it will have to withstand
the strict scrutiny from this Court.
Page 18 of 25
Strict scrutiny entails that the presumed law or policy must be justified
by a compelling state or government interest, that such law or policy
must be narrowly tailored to achieve that goal or interest, and that the
law or policy must be the least restrictive means for achieving that
interest. It is through that lens that we examine petitioner’s premise
that the NTC has the authority to cancel licenses of broadcast
franchisees.
B.
In analyzing the compelling government interest that may justify the
investiture of authority on the NTC advocated by petitioner, we cannot
ignore the interest of the State as expressed in the respective
legislative franchises of the petitioner, R.A. No. 7477 and R. A. Act No.
7582. Since legislative franchises are extended through statutes, they
should receive recognition as the ultimate expression of State policy.
What the legislative franchises of respondents express is that the
Congress, after due debate and deliberation, declares it as State policy
that respondents should have the right to operate broadcast stations.
The President of the Philippines, by affixing his signature to the law,
concurs in such State policy.
Allowing the NTC to countermand State policy by revoking
respondent’s vested legal right to operate broadcast stations unduly
gives to a mere administrative agency veto power over the
implementation of the law and the enforcement of especially vested
legal rights. That concern would not arise if Congress had similarly
empowered the NTC with the power to revoke a franchisee’s right to
operate broadcast stations. But as earlier stated, there is no such
expression in the law, and by presuming such right the Court will be
acting contrary to the stated State interest as expressed in
respondents’ legislative franchises.
If we examine the particular franchises of respondents, it is readily
apparent that Congress has especially invested the NTC with certain
powers with respect to their broadcast operations. Both R.A. No.
747759 and R.A. No. 758260require the grantee "to secure from the
[NTC] the appropriate permits and licenses for its stations," barring
the private respondents from "using any frequency in the radio
spectrum without having been authorized by the [NTC]." At the same
time, both laws provided that "[the NTC], however, shall not
unreasonably withhold or delay the grant of any such authority."
An important proviso is stipulated in the legislative franchises,
particularly under Section 5 of R.A. No. 7477 and Section 3 of R.A. No.
7582, in relation to Section 11 of R.A. No. 3902.
Section 5. Right of Government. ― A special right is hereby reserved
to the President of the Philippines, in times of rebellion, public peril,
calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee,
temporarily suspend the operation of any stations in the interest of
public safety, security and public welfare, or authorize the temporary
use and operation thereof by any agency of the Government, upon
due compensation to the grantee, for the use of said stations during
the period when they shall be so operated.
Prov Rem Rule 66 (QW) Fulltext
The provision authorizes the President of the Philippines to exercise
considerable infringements on the right of the franchisees to operate
their enterprises and the right to free expression. Such authority finds
corollary constitutional justification as well under Section 17, Article
XII, which allows the State "in times of national emergency, when the
public interest so requires x x x during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected
with public interest." We do not doubt that the President or the State
can exercise such authority through the NTC, which remains an agency
within the executive branch of government, but such can be exercised
only under limited and rather drastic circumstances. They still do not
vest in the NTC the broad authority to cancel licenses and permits.
These provisions granting special rights to the President in times of
emergency are incorporated in our understanding of the legislated
state policy with respect to the operation by private respondents of
their legislative franchises. There are restrictions to the operation of
such franchises, and when these restrictions are indeed exercised
there still may be cause for the courts to review whether said
limitations are justified despite Section 3, Article I of the Constitution.
At the same time, the state policy as embodied in these franchises is
to restrict the government’s ability to impair the freedom to broadcast
of the stations only upon the occurrence of national emergencies or
events that compromise the national security.
It should be further noted that even the aforequoted provision does
not authorize the President or the government to cancel the licenses
of the respondents. The temporary nature of the takeover or closure
of the station is emphasized in the provision. That fact further
disengages the provision from any sense that such delegated
authority can be the source of a broad ruling affirming the right of the
NTC to cancel the licenses of franchisees.
With the legislated state policy strongly favoring the unimpeded
operation of the franchisee’s stations, it becomes even more difficult
to discern what compelling State interest may be fulfilled in ceding to
the NTC the general power to cancel the franchisee’s CPC’s or licenses
absent explicit statutory authorization. This absence of a compelling
state interest strongly disfavors petitioner’s cause.
C.
Now, we shall tackle jointly whether a law or policy allowing the NTC
to cancel CPCs or licenses is to be narrowly tailored to achieve that
requisite compelling State goal or interest, and whether such a law or
policy is the least restrictive means for achieving that interest. We
addressed earlier the difficulty of envisioning the compelling State
interest in granting the NTC such authority. But let us assume for
argument’s sake, that relieving the injury complained off by petitioner
– the failure of private respondents to open up ownership through the
initial public offering mandated by law – is a compelling enough State
interest to allow the NTC to extend consequences by canceling the
licenses or CPCs of the erring franchisee.
There is in fact a more appropriate, more narrowly-tailored and least
restrictive remedy that is afforded by the law. Such remedy is that
Page 19 of 25
adverted to by the NTC and the Court of Appeals – the resort to quo
warranto proceedings under Rule 66 of the Rules of Court.
Under Section 1 of Rule 66, "an action for the usurpation of a public
office, position or franchise may be brought in the name of the
Republic of the Philippines against a person who usurps, intrudes into,
or unlawfully holds or exercises public office, position or
franchise."61 Even while the action is maintained in the name of the
Republic62 , the Solicitor General or a public prosecutor is obliged to
commence such action upon complaint, and upon good reason to
believe that any case specified under Section 1 of Rule 66 can be
established by proof.63
The special civil action of quo warranto is a prerogative writ by which
the Government can call upon any person to show by what warrant he
holds a public office or exercises a public franchise.64 It is settled that
"[t]he determination of the right to the exercise of a franchise, or
whether the right to enjoy such privilege has been forfeited by non-
user, is more properly the subject of the prerogative writ of quo
warranto, the right to assert which, as a rule, belongs to the State
‘upon complaint or otherwise,’ the reason being that the abuse of a
franchise is a public wrong and not a private injury."65 A forfeiture of
a franchise will have to be declared in a direct proceeding for the
purpose brought by the State because a franchise is granted by law
and its unlawful exercise is primarily a concern of Government.66Quo
warranto is specifically available as a remedy if it is thought that a
government corporation has offended against its corporate charter or
misused its franchise.67
The Court of Appeals correctly noted that in PLDT v. NTC,68 the Court
had cited quo warranto as the appropriate recourse with respect to an
allegation by petitioner therein that a rival telecommunications
competitor had failed to construct its radio system within the ten (10)
years from approval of its franchise, as mandated by its legislative
franchise.69 It is beyond dispute that quo warranto exists as an
available and appropriate remedy against the wrong imputed on
private respondents.
Petitioners argue that since their prayer involves the cancellation of
the provisional authority and CPCs, and not the legislative franchise,
then quo warranto fails as a remedy. The argument is artificial. The
authority of the franchisee to engage in broadcast operations is
derived in the legislative mandate. To cancel the provisional authority
or the CPC is, in effect, to cancel the franchise or otherwise prevent its
exercise. By law, the NTC is incapacitated to frustrate such mandate by
unduly withholding or canceling the provisional authority or the CPC
for reasons other than the orderly administration of the frequencies in
the radio spectrum.
What should occur instead is the converse. If the courts conclude that
private respondents have violated the terms of their franchise and thus
issue the writs of quo warranto against them, then the NTC is obliged
to cancel any existing licenses and CPCs since these permits draw
strength from the possession of a valid franchise. If the point has not
already been made clear, then licenses issued by the NTC such as CPCs
and provisional authorities are junior to the legislative franchise
enacted by Congress. The licensing authority of the NTC is not on
equal footing with the franchising authority of the State through
Prov Rem Rule 66 (QW) Fulltext
Congress. The issuance of licenses by the NTC implements the
legislative franchises established by Congress, in the same manner
that the executive branch implements the laws of Congress rather than
creates its own laws. And similar to the inability of the executive
branch to prevent the implementation of laws by Congress, the NTC
cannot, without clear and proper delegation by Congress, prevent the
exercise of a legislative franchise by withholding or canceling the
licenses of the franchisee.
And the role of the courts, through quo warranto proceedings, neatly
complements the traditional separation of powers that come to bear
in our analysis. The courts are entrusted with the adjudication of the
legal status of persons, the final arbiter of their rights and obligations
under law. The question of whether a franchisee is in breach of the
franchise specially enacted for it by Congress is one inherently suited
to a court of law, and not for an administrative agency, much less one
to which no such function has been delegated by Congress. In the
same way that availability of judicial review over laws does not
preclude Congress from undertaking its own remedial measures by
appropriately amending laws, the viability of quo warranto in the
instant cases does not preclude Congress from enforcing its own
prerogative by abrogating the legislative franchises of respondents
should it be distressed enough by the franchisees’ violation of the
franchises extended to them.
Evidently, the suggested theory of petitioner to address his plaints
simply overpowers the delicate balance of separation of powers, and
unduly grants superlative prerogatives to the NTC to frustrate the
exercise of the constitutional freedom speech, expression, and of the
press. A more narrowly-tailored relief that is responsive to the cause
of petitioner not only exists, but is in fact tailor-fitted to the
constitutional framework of our government and the adjudication of
legal and constitutional rights. Given the current status of the law,
there is utterly no reason for this Court to subscribe to the theory that
the NTC has the presumed authority to cancel licenses and CPCs
issued to due holders of legislative franchise to engage in broadcast
operations.
V.
An entire subset of questions may arise following this decision,
involving issues or situations not presently before us. We wish to make
clear that the only aspect of the regulatory jurisdiction of the NTC that
we are ruling upon is its presumed power to cancel provisional
authorities, CPCs or CPCNs and other such licenses required of
franchisees before they can engage in broadcast operations.
Moreover, our conclusion that the NTC has no such power is borne
not simply from the statutory language of E.O. No. 546 or the
respective stipulations in private respondents’ franchises, but moreso,
from the application of the strict scrutiny standard which, despite its
weight towards free speech, still involves the analysis of the
competing interests of the regulator and the regulated.
In resolving the present questions, it was of marked impact to the
Court that the presumed power to cancel would lead to utterly fatal
consequences to the constitutional right to expression, as well as the
legislated right of these franchisees to broadcast. Other regulatory
measures of less drastic impact will have to be assessed on their own
Page 20 of 25
terms in the proper cases, and our decision today should not be
accepted or cited as a blanket shearing of the NTC’s regulatory
jurisdiction. In addition, considering our own present recognition of
legislative authority to regulate broadcast media on terms more
cumbersome than print media, it should not be discounted that
Congress may enact amendments to the organic law of the NTC that
would alter the legal milieu from which we adjudicated
today.1avvphi1.zw+
Still, the Court sees all benefit and no detriment in striking this blow
in favor of free expression and of the press. While the ability of the
State to broadly regulate broadcast media is ultimately dictated by
physics, regulation with a light touch evokes a democracy mature
enough to withstand competing viewpoints and tastes. Perhaps
unwittingly, the position advocated by petitioner curdles a most vital
sector of the press – broadcast media – within the heavy hand of the
State. The argument is not warranted by law, and it betrays the
constitutional expectations on this Court to assert lines not drawn and
connect the dots around throats that are free to speak.
WHEREFORE, the instant petition is DENIED. No pronouncement as
to costs.
SO ORDERED.
#4 G.R. No. L-16887 November 17, 1920
MIGUEL R. CORNEJO, petitioner,
vs.
ANDRES GABRIEL, provincial governor of Rizal, and the
PROVINCIAL BOARD OF RIZAL, composed of ANDRES GABRIEL,
PEDRO MAGSALIN and CATALINO S. CRUZ, respondents.
MALCOLM, J.:
The petitioner in this case, the suspended municipal president of
Pasay, Rizal, seeks by these proceedings in mandamus to have the
provincial governor and the provincial board of the Province of Rizal
temporarily restrained from going ahead with investigation of the
charges filed against him pending resolution of the case, and to have
an order issue directed to the provincial governor commanding him
to return the petitioner to his position as municipal president of Pasay.
The members of the provincial board have interposed a demurrer
based on the ground that this court has no right to keep them from
complying with the provisions of the law. The provincial governor has
filed an answer to the petition, in which he alleges as a special defense
that numerous complaints have been received by him against the
conduct of Miguel R. Cornejo, municipal president of Pasay; that these
complaints were investigated by him; that he came to the conclusion
that agreeable to the powers conferred upon provincial governors, the
municipal president should be temporarily suspended, and that an
investigation is now being conducted by the provincial board.
Counsel for petitioner has argued, with much eloquence, that his client
has been deprived of an office, to which he was elected by popular
vote, without having an opportunity to be heard in his own defense.
The respondents reply that all that the provincial governor and the
Prov Rem Rule 66 (QW) Fulltext
provincial board have done in this case is to comply with the
requirements of the law which they are sworn to enforce. Obviously,
therefore, we should first have before us the applicable provisions of
the Philippine law bearing on the subject of suspension of public
officers.
Under the title of "Provincial supervision over municipal officers,"
Article IV of Chapter 57 of the Administrative Code, provides:
The provincial governor shall receive and investigate
complaints against municipal officers for neglect of duty,
oppression, corruption, or other form of maladministration
in office. for minor delinquency he may reprimand the
offender; and if a more severe punishment seems to be
desirable, he shall submit written charges touching the
matter to the provincial board, and he may in such case
suspend the officer (not being the municipal treasurer)
pending action by the board, if in his opinion the charge be
one affecting the official integrity of the officer in question.
Where suspension is thus effected, the written charges
against the officer shall be filed with the board within ten
days.
Trial of municipal officer by provincial board. — When written
charges are preferred by a provincial governor against a
municipal officer, the provincial board shall, at its next
meeting, regular or special, furnish a copy of said charges to
the accused official, with a notification of the time and place
of hearing thereon; and at the time and place appointed, the
board shall proceed to hear and investigate the truth or
falsity of said charges, giving the accused official full
opportunity to be heard. The hearing shall occur as soon as
may be practicable, and in case suspension has been
effected, not later than fifteen days from the date the
accused is furnished a copy of the charges, unless the
suspended official shall, on sufficient grounds, request an
extension of time to prepare his defense.
Action by provincial board. — If, upon due consideration, the
provincial board shall adjudge that the charges are not
sustained, the proceedings shall be dismissed; if it shall
adjudge that the accused has been guilty of misconduct
which would be sufficiently punished by reprimand, or
further reprimand, it shall direct the provincial governor to
deliver such reprimand in pursuance of its judgment; and in
either case the official, if previously suspended, shall be
reinstated.
If in the opinion of the board the case is one requiring more
severe discipline, it shall without unnecessary delay forward
to the Chief of the Executive Bureau certified copies of the
record in the case, including the charges, the evidence, and
the findings of the board, to which shall be added the
recommendation of the board as to whether the official
ought to be suspended, further suspended, or finally
dismissed from office; and in such case the board may
exercise its discretion to reinstate the official, if already
Page 21 of 25
 suspended, or to suspend him or continue his suspension
pending final action.
The trial of a suspended municipal official and the
proceedings incident thereto shall be given preference over
the current and routine business of the board.
Action by Chief of Executive Bureau. — Upon receiving the
papers in any such proceeding the Chief of the Executive
Bureau shall review the case without unnecessary delay and
shall make such order for the reinstatement, dismissal,
suspension, or further suspension of the official, as the facts
shall warrant. Disciplinary suspension made upon order of
the chief of the Executive Bureau shall be without pay and in
duration shall not exceed two months. No final dismissal
hereinunder shall take effect until recommended by the
Department Head and approved by the Governor-General.
With the foregoing legal provisions in mind, certain aspects of the case
can be disposed of without difficulty. Thus it cannot be seriously
contended that the courts should interfere with an orderly
investigation which is about to be conducted by the provincial board.
Nor can there be any doubt as to the meaning of the law. A very
minute and extensive procedure is provided by the Legislature for
central and provincial supervision of municipal officers. The provincial
governor, in receiving and investigating complaints against such
officers, may take three courses. For a minor delinquency he may
reprimand the offender; but if the maladministration in office is more
serious he may temporarily suspend the officer, and thereafter may
file written charges against the officer with the provincial board. The
procedure followed before the provincial board and later on appeal
to the Chief of the Executive Bureau, while interesting, does not
concern us. The important fact is that the law, in permitting a
provincial governor temporarily to suspend a municipal officer, makes
no mention of a formal hearing of the charges.
In the exercise of this disciplinary power by the provincial governor,
all that he can do before the presentation of formal charges is either
to reprimand the officer or to suspend him temporarily from office. In
the latter case the provincial governor's action is not a finality. The law
is especially careful to guard the rights of officer charged with
maladministration in office. But the point is made that,
notwithstanding the provisions of the law and notwithstanding long
official practice, the temporary suspension of a municipal officer,
without an opportunity to be heared in his own defense, is in
contravention of the provisions of the Philippine Bill of Rights
concerning due process of law.
So much has been written on the subject of due process of law that is
would be futile to enter into its intricate mazes. It is self-evident,
however, that, in ordinary cases, to condemn without a hearing
violates the due process of law clause of the American Constitution
and of the Philippine Bill of Rights. It is for this reason that we can well
understand the logic of those who cling to this through and to whom
a contemplated violation of the Constitution is most repugnant. It is
but fair, in ordinary cases, that a public official should not be removed
or suspended without notice, charges, a trial, and an opportunity for
explanation. But not permitting our judgment to be unduly swayed by
Prov Rem Rule 66 (QW) Fulltext
sympathy for the petitioner's brave fight, and recalling again that the
courts have ordinarily to give effect to legislative purposes, it is further
only fair to mention certain exceptions to the due process of law rule,
which would seem to include the instant case.
The fact should not be lost sight of that we are dealing with an
administrative proceeding and not with a judicial proceeding. As
Judge Cooley, the leading American writer on constitutional Law, has
well said, due process of law is not necessarily judicial process; much
of the process by means of which the Government is carried on, and
the order of society maintained, is purely executive or administrative,
which is as much due process of law, as is judicial process. While a day
in court is a matter of right in judicial proceedings, in administrative
proceedings it is otherwise since they rest upon different principles.
(Weimer vs. bunbury [1874], 30 Mich., 201; Den. vs. Hoboken Land
and Improvement Co. [1856], 18 How., 272 followed in
Forbes vs. Chuoco Tiaco [1910], 16 Phil., 534; Tan Te vs. Bell {1914], 27
Phil., 354; U.S. vs. Gomez Jesus [1915], 31 Phil., 218 and other
Philippine cases). In certain proceedings, therefore, of an
administrative character, it may be stated, without fear of
contradiction, that the right to a notice and hearing are not essential
to due process of law. Examples of special or summary proceedings
affecting the life, liberty or property of the individual without any
hearing can easily be recalled. Among these are the arrest of an
offender pending the filing of charges; the restraint of property in tax
cases; the granting of preliminary injunction ex parte; and the
suspension of officers or employees by the Governor-General or a
Chief of a Bureau pending an investigation. (See
Weimer vs. Bunbury, supra; 12 C.J., 1224; Administrative Code, sec.
694.)
Again, for this petition to come under the due process of law
prohibition, it would be necessary to consider an office as "property."
It is, however, well settled in the United States, that a public office is
not property within the sense of the constitutional guaranties of due
proces of law, but is a public trust or agency. In the case of
Taylor vs. Beckham ([1899], 178, U. S., 548), Mr. Chief Justice Fuller said
that: "Decisions are numerous to the effect that public offices are mere
agencies or trust, and not property as such." The basic idea of
government in the Philippine Islands, as in the United States, 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 whom he represents.
Coming now to the more specific consideration of the issue in this
case, we turn to the article by Prof. Frank J. Goodnow, generally
considered the leading authority in the United States on the subject
of Administration Law, in Vol. 29, Cyclopedia of Law and Procedure,
and find the rules as to suspension of public officers laid down very
concisely as follows: "Power to suspend may be exercised without
notice to the person suspended." (P. 1405.) The citation by Professor
Goodnow to support his conclusion is State of Florida, ex rel. Attorney-
General vs. Johnson ([1892], 30 Fla., 433; 18 L. R. A., 410). It was here
held by the Supreme Court of Florida that the governor could, under
section 15 of the executive article of the Constitution, suspend an
officer for neglect of duty in office without giving previous notice to
the officer of the charge made against him.
Page 22 of 25
A later compilation of the pertinent authorities is to be found in 22
Ruling Case Law, pp. 564, 565. On the subject of suspension of public
officers it is heared said:
The suspension of an officer pending his trial for
misconduct, so as to tie his hands for the time being, seems
to be universally accepted as fair, and often necessary. . . .
Notice and hearing are not prerequisite to suspension unless
required by statute and therefore suspension without such
notice does not deprive the officer of property without due
process of law. Nor is a suspension wanting in due process
of law or a denial of the equal protection of the laws because
the evidence against the officer is not produced and he is
not given an opportunity to confront his accusers and cross-
examine the witnesses.lawph!l.net
The case to support the first sentence in the above enunciation of the
rule is State vs. Megaarden (85 Minn., 41), which in turn is predicated
on State vs. Peterson ([1892], 50 Minn., 239). In a discussion of the
subject more general than specific, it was said:
The safety of the state, which is the highest law, imperatively
requires the suspension, pending his trial, of a public officer,
— especially a custodian of public funds, — charged with
malfeasance or nonfeasance in office. Suspension does not
remove the officer, but merely prevents him, for the time
being, from performing the functions of his office; and from
the very necessities of the case must precede a trial or
hearing. Such temporary suspension without previous
hearing is fully in accordance with the analogies of the law.
It is a constitutional principle that no person shall be
deprived of his liberty or property except by due process of
law, which includes notice and a hearing, yet it was never
claimed that in criminal procedure a person could not be
arrested and deprived of his liberty until a trial could
reasonably be had, or that in civil actions ex parte and
temporary injunctions might not be issued and retained in
proper case, until a trial could be had, and the rights of the
parties determined. We have no doubt, therefore, of the
authority of the legislature to vest the governor with power
to temporarily suspend a county treasurer pending the
investigation of the charges against him, of official
misconduct.
The case cited by the editors of Ruling Case Law as authority for their
second sentence is that of Griner vs. Thomas ([1907], 101 Texas, 36; 16
Ann. Cas., 944). The holding of the court here was that it is within the
power of the legislature to authorize the temporary suspension of a
public officer during the pendency of valid proceedings to remove
such officer and as an incident to such proceedings, notwithstanding
the fact that the constitution has given power to remove such officer
only for cause and after a hearing. Notice and hearing are not
preprequisites to the suspension of a public officer under a statute
which does not provide for such notice and hearing.
The third case cited by Ruling Case Law comes from the United States
Supreme Court. (Wilson vs. North Carolina [1897], 169 U.S, 586.) An
examination of the decision, however, shows that while it tends to
Prov Rem Rule 66 (QW) Fulltext
substantiate the rule, the facts are not exactly on all fours with those
before us. Without, therefore, stopping to set forth the facts, only the
following from the body of the decisioned be noted, viz.:
In speaking of the statute and the purpose of this particular
provision the Supreme Court of the State said: "The duty of
suspension was imposed upon the Governor from the
highest motives of public policy to prevent the danger to the
public interests which might arise from leaving such great
powers and responsibilities in the hands of men legally
disqualified. To leave them in full charge of their office until
the next biennial session of the legislature, or pending
litigation which might be continued for year, would destroy
the very object of the law. As the Governor was, therefore,
by the very and spirit of the law, required to act and act
promptly, necessarily upon his own findings of fact, we are
compelled to hold that such official action was, under the
circumstances, due process of law. Even if it were proper, the
Governor would have no power to direct an issue like a
chancellor."
The highest court of the State has held that this statue was
not a violation of the constitution of the State; that the
hearing before the Governor was sufficient; that the office
was substantially an administrative one, although the
commission was designed by a statute subsequent to that
which created it, a court of record; that the officer taking
office under the statute was bound to take it on the terms
provided for therein; that he was lawfully suspended from
office; and that he was not entitled to a trial by jury upon the
hearing of this case in the trial court. As a result the court
held that the defendant had not been deprived of his
property without due process of law, nor had he been
denied the equal protection of the laws.
xxx xxx xxx
We are of opinion the plaintiff in error was not deprived of
any right guaranteed to him by the Federal Constitution, by
reason of the proceedings before the Governor under the
statute above mentioned, and resulting in his suspension
from office.
The procedure was in accordance with the constitution and
laws of the State. It was taken under a valid statute creating
a state office in a constitutional manner, as the state court
has held. What kind and how much of a hearing the officer
should have before suspension by the Governor was a
matter for the state legislature to determine, having regard
to the constitution of the State. (There can also be cited as
supporting authority State ex rel. Wendling vs. Board of
Police and Fire Commissioners [1915], 159 Wis., 295;
Sumpter vs. State {1906], 81 Ark., 60; Gray vs. McLendon
[1901], 134 Ga., 224; State vs. Police Commissioners, 16 Mo.
App., 947; Preston vs. City of Chicago [1910], 246 III., 26; and
People vs. Draper [1910], 124 N.Y.S., 758, where it was held
that the legislature has the right to authorize an officer to
Page 23 of 25
 remove an appointive or elective officer without notice or
hearing.)
Certain intimations have been made that under the procedure
prescribed by the law an injustice might be done municipal officers.
Such suppositions are not unusual even as to cases before the courts,
but in this as in all other instances, the presumption always is that the
law will be followed and that the investigation and the hearing will be
impartial. In the language of Justice Trent in Severino vs. Governor-
General ([1910], 16 Phil., 366, 402), "the presumption is just as
conclusive in favor of executive action, as to its correctness and
justness, as it is in favor of judicial action." We entertain no doubt that
the provincial governor, fully conscious of the trust reposed in him by
the law, will act only in cases where strong reasons exist for exercising
the power of suspension and upon a high consideration of his duty.
The suggestion that an unfriendly governor might unduly delay the
hearing is also without much force. The same might be said of any
administrative officer, or in fact of any judicial officer. The
presumption, again, is that every officer will do his duty promptly, and
if he does not, certainly a remedy can be found to make him do so.
Not only this, but the law before us expedites the proceedings by
fixing a short period of ten days within which the provincial governor
must lay the charges before the provincial board, which must be heard
by the latter body within fifteen days. Of more compelling force is the
suggestion from the other side that the public interest might suffer
detriment by postponing the temporary suspension until after the
hearing.
Our holding, after most thoughtful consideration, is that the
provisions of section 2188 of the Administrative Code are clear and
that they do not offend the due process of law clause of the Philippine
Bill of Rights. Accordingly, it is our duty to apply the law without fear
or favor.
Petition denied with costs. So ordered.
#5 G.R. No. 184980 March 30, 2011
DANILO MORO, Petitioner,
vs.
GENEROSO REYES DEL CASTILLO, JR., Respondent.
DECISION
ABAD, J.:
This case is about the right of the petitioner to be reinstated through
an action for quo warranto against the present holder meantime that
petitioner has appealed from the Ombudsman’s decision dismissing
him from the service for, among other grounds, misconduct in office.
The Facts and the Case
On December 7, 2005 the Ombudsman charged respondent Generoso
Reyes Del Castillo, Jr. (Del Castillo), then Chief Accountant of the
General Headquarters (GHQ) Accounting Center of the Armed Forces
Prov Rem Rule 66 (QW) Fulltext
of the Philippines (AFP), with dishonesty, grave misconduct and
conduct prejudicial to the best interest of the service in OMB-P-A-06-
0031-A. The Ombudsman alleged that Del Castillo made false
statements in his Statement of Assets and Liabilities from 1996 to 2004
and that he acquired properties manifestly out of proportion to his
reported salary.
On April 1, 2006 the GHQ reassigned Del Castillo to the Philippine Air
Force (PAF) Accounting Center by virtue of GHQ AFP Special Order 91
(SO 91).1 Through the same order, petitioner Danilo Moro (Moro),
then Chief Accountant of the Philippine Navy, took over the position
of Chief Accountant of the GHQ Accounting Center.
Meantime, on August 30, 2006 the Ombudsman placed Del Castillo
under preventive suspension for six months and eventually ordered
his dismissal from the service on February 5, 2007.2 The penalty
imposed on him included cancellation of eligibility, forfeiture of
retirement benefits, and perpetual disqualification from
reemployment in the government. Del Castillo filed a motion for
reconsideration, which is pending to this date.
Following the lapse of his six-month suspension or on March 12, 2007
Del Castillo attempted to reassume his former post of GHQ Chief
Accountant. But, he was unable to do so since Moro declined to yield
the position. Consequently, on April 4, 2007 Del Castillo filed a petition
for quo warranto3 against Moro with the Regional Trial Court4 (RTC)
of Parañaque City in Civil Case 07-0111.
Del Castillo claimed that Moro was merely detailed as GHQ Chief
Accountant when the Ombudsman placed Del Castillo under
preventive suspension. Since the latter’s period of suspension already
lapsed, he was entitled to resume his former post and Moro was but
a usurper. 5
For his part, Moro pointed out in his Answer6 that his appointment
under SO 91 as GHQ Chief Accountant was a permanent appointment.
Indeed, the GHQ had already reassigned Del Castillo to the PAF
Accounting Center even before the Ombudsman placed him under
preventive suspension. Del Castillo was, therefore, not automatically
entitled to return to his former GHQ post despite the lapse of his
suspension.
During the pendency of the quo warranto case before the RTC, Del
Castillo refused to report at the PAF Accounting Center despite a
memorandum from the AFP Acting Deputy Chief of Staff for Personnel
that carried the note and approval of the AFP Chief of Staff.7 Del
Castillo insisted that he could not be placed under the PAF since he
was the GHQ Chief Accountant.8
On October 10, 2007 the RTC dismissed Del Castillo’s
petition,9 holding that Moro held the position of GHQ Chief
Accountant pursuant to orders of the AFP Chief of Staff. Moreover, the
RTC found Del Castillo’s reassignment to the PAF Accounting Center
valid. Under the Civil Service Commission (CSC) Rules, a reassignment
may be made for a maximum of one year. Since Del Castillo’s
preventive suspension kept him away for only six months, he had to
return to the PAF to complete his maximum detail at that posting.
Besides, said the trial court, the Ombudsman’s February 5, 2007 Order,
Page 24 of 25
which directed Del Castillo’s dismissal from the service for grave
misconduct, among others, rendered the petition moot and academic.
The RTC denied Del Castillo’s motion for reconsideration.
Instead of appealing from the order of dismissal of his action, Del
Castillo filed a petition for certiorari with the Court of Appeals (CA) in
CA-G.R. SP 103470. On October 13, 2008 the CA reversed the RTC
Decision.10Notwithstanding the procedural error, the CA gave due
course to the petition on grounds of substantial justice and fair play.
It held that Del Castillo’s reassignment exceeded the maximum of one
year allowed by law and that SO 91 was void since it did not indicate
a definite duration for such reassignment. Further, the CA held as non-
executory the Ombudsman’s dismissal of Del Castillo in view of his
appeal from that dismissal. With the denial of his motion for
reconsideration, Moro filed this petition via Rule 45 of the Rules of
Court.
The Issue Presented
The key issue in this case is whether or not respondent Del Castillo is
entitled to be restored to the position of Chief Accountant of the GHQ
Accounting Center that he once held.
In quo warranto, the petitioner who files the action in his name must
prove that he is entitled to the subject public office. Otherwise, the
person who holds the same has a right to undisturbed possession and
the action for quo warranto may be dismissed.17
Here, Del Castillo brought the action for quo warranto in his name on
April 4, 2007, months after the Ombudsman ordered his dismissal
from service on February 5, 2007. As explained above, that dismissal
order was immediately executory even pending appeal. Consequently,
he has no right to pursue the action for quo warranto or reassume the
position of Chief Accountant of the GHQ Accounting Center.
WHEREFORE, the Court GRANTS the petition, REVERSES and SETS
ASIDE the decision dated October 13, 2008 of the Court of Appeals in
CA-G.R. SP 103470, and REINSTATES the October 10, 2007 decision of
the Regional Trial Court in Civil Case 07-0111, which dismissed the
complaint for quo warranto.
SO ORDERED.

The Court’s Ruling

An action for quo warranto under Rule 66 of the Rules of Court may
be filed against one who usurps, intrudes into, or unlawfully holds or
exercises a public office.11 It may be brought by the Republic of the
Philippines or by the person claiming to be entitled to such office.12 In
this case, it was Del Castillo who filed the action, claiming that he was
entitled as a matter of right to reassume the position of GHQ Chief
Accountant after his preventive suspension ended on March 11, 2007.
He argues that, assuming his reassignment to the PAF Accounting
Center was valid, the same could not exceed one year. Since his detail
at the PAF took effect under SO 91 on April 1, 2006, it could last not
later than March 31, 2007. By then, Moro should have allowed him to
return to his previous posting as GHQ Chief Accountant.

But, as Moro points out, he had been authorized under SO 91 to serve

as GHQ Chief Accountant. Del Castillo, on the other hand, had been
ordered dismissed from the service by the Ombudsman in OMB-P-A-
06-0031-A. Consequently, he cannot reassume the contested position.

Del Castillo of course insists, citing Lapid v. Court of Appeals,13 that

only decisions of the Ombudsman that impose the penalties of public
censure, reprimand, or suspension of not more than a month or a fine
of one month salary are final, executory, and unappealable.
Consequently, when the penalty is dismissal as in his case, he can avail
himself of the remedy of appeal and the execution of the decision
against him would, in the meantime, be held in abeyance.1avvphi1

But, the Lapid case has already been superseded by In the Matter to
Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary
of DPWH.14 The Court held in Datumanong that Section 7, Rule III of
Administrative Order 7, as amended by Administrative Order
17,15 clearly provides that an appeal shall not stop a decision of the
Ombudsman from being executory. The Court later reiterated this
ruling in Office of the Ombudsman v. Court of Appeals.16
Prov Rem Rule 66 (QW) Fulltext Page 25 of 25