G.R. No.

127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF

ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF
THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules
of Court is the right of the people to directly propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through
the original proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of
the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and
1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional
convention. 4 For this and the other reasons hereafter discussed, we resolved to give due course to this
petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission
on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an
order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist

Petitioners and volunteers, in establishing signing stations at the time and on the dates
designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and
the members of the Movement and other volunteers intend to exercise the power to directly propose

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amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and supervision of the
COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all
over the country, with the assistance of municipal election registrars, who shall verify the signatures
affixed by individual signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control and supervision of the
COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article
VI, 7Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the petition is a
copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which
consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the
following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT

OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4
OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be formally
filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the
petition, together with the attached Petition for Initiative on the 1987 Constitution (including the
proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in three
(3) daily newspapers of general circulation at his own expense" not later than 9 December 1996; and (b)
setting the case for hearing on 12 December 1996 at 10:00 a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete
Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of,
or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same
day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly
cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda
and/or oppositions/memoranda" within five days. 13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla,
and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following arguments:

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 (1) The constitutional provision on people's initiative to amend the Constitution can only
be implemented by law to be passed by Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments
by People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is
still pending before the Senate Committee on Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative
on the Constitution, on statutes, and on local legislation. However, it failed to provide any
subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates
that the matter of people's initiative to amend the Constitution was left to some future
law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege
speech delivered before the Senate in 1994: "There is not a single word in that law which
can be considered as implementing [the provision on constitutional initiative]. Such
implementing provisions have been obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. This indicates that the Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct
of initiative on the Constitution and initiative and referendum on national and local laws,
is ultra vires insofar as initiative on amendments to the Constitution is concerned, since
the COMELEC has no power to provide rules and regulations for the exercise of the right
of initiative to amend the Constitution. Only Congress is authorized by the Constitution
to pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.

(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds
for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the
event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters amounting to at least P180 million,
not to mention the millions of additional pesos in expenses which would be incurred in the conduct of the
initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities
of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other
plain, speedy, and adequate remedy in the ordinary course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-
extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding

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with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition.
They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE

COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING
SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY
DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE

GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN
ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT

TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC,
ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING
GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION

DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC.
12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS

PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-

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 EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT
IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off
with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the
1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend
the Constitution or to put the movement to gather signatures under COMELEC power and function. On
the substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs
the conduct of initiative to amend the Constitution. The absence therein of a subtitle for
such initiative is not fatal, since subtitles are not requirements for the validity or
sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in the
plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be necessary
to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution, or
more specifically, only those which lay term limits. It does not seek to reexamine or
overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite
it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will
be a priority government expense because it will be for the exercise of the sovereign power of the people.

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power;
and its Section 3, which enumerates the three systems of initiative, includes initiative on
the Constitution and defines the same as the power to propose amendments to the
Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.

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 (2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked
pertinent provisions of the law when he claimed that nothing therein was provided
for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735
does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735
and under the Omnibus Election Code. The rule-making power of the COMELEC to
implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay
Metropolitan Authority vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private
respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him
to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23
January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys
for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the
motion was their Petition in Intervention, which was later replaced by an Amended Petition in
Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change
from a political philosophy that rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an isolated one, it can affect other
provisions, such as, on synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which, by express provision of Section
2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all other
national and local elective officials are based on the philosophy of governance, "to open
up the political arena to as many as there are Filipinos qualified to handle the demands
of leadership, to break the concentration of political and economic powers in the hands
of a few, and to promote effective proper empowerment for participation in policy and
decision-making for the common good"; hence, to remove the term limits is to negate
and nullify the noble vision of the 1987 Constitution.

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 (3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-
of-interest situation. Initiative is intended as a fallback position that may be availed of by
the people only if they are dissatisfied with the performance of their elective officials, but
not as a premium for good performance. 20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people's initiative on amendments to the Constitution. It fails to state (a)
the proper parties who may file the petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the veracity of the
signatures, (g) the role of the COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of funds for such people's initiative.
Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin's
petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the procedure
for a people's initiative under Section 2 of Article XVII of the Constitution. That function
exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal
basis for the Resolution, as the former does not set a sufficient standard for a valid
delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in

Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to
initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise
submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC
Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction
to take cognizance of the Delfin Petition and to order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution
No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signed by the required number of registered voters. He also submits that
the proponents of a constitutional amendment cannot avail of the authority and resources of the
COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an
initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of
the 1987 Constitution.

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 (2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law
on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only
by Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the
DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting
the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator
Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its
Petition in Intervention within a nonextendible period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from receipt of the said Petition in
Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which
the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum
on National and Local Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific provisions on the
conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in
the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of,
or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and dates for signature gathering; (b)
instructing municipal election officers to assist Delfin's movement and volunteers in
establishing signature stations; and (c) directing or causing the publication of, inter alia,
the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.

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After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin
Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do
so constituted grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the
House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts
of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on
Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.

For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears
to pose a prejudicial procedural question.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of this special civil action when there is a pending
case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for
prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (People v.
Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the body politic of the questioned
Comelec order. The consequent climate of legal confusion and political instability begs for
judicial statesmanship.

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 30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
25
can save a nation in peril and uphold the paramount majesty of the Constitution.

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition
on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC
made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors
at the hearing on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to
the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached
Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing.
The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition
rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides:

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal
or any other plain, speedy and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant to desist
from further proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss
the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the
instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the
Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because the
transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

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 Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional action,
in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the Constitution until
Congress provides for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if Congress, for whatever reason,
does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___ Section
___of the Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted a
new formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call

attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the
complete committee report. With the permission of the Members, may I
quote Section 2:

11
 The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of
the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10

percent, there are no details in the provision on how to carry this out. Do
we understand, therefore, that we are leaving this matter to the
legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as

the legislature does not pass the necessary implementing law on this, this
will not operate?

MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The Gentleman
is right. In any event, as envisioned, no amendment through the power
of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that
could be proposed through the exercise of this initiative power would be
after five years. It is reasonably expected that within that five-year
period, the National Assembly can come up with the appropriate rules
governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details on
how this is to be carried out — is it possible that, in effect, what will be
presented to the people for ratification is the work of the legislature
rather than of the people? Does this provision exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an initiative.

xxx xxx xxx

12
 MS. AQUINO. Do I understand from the sponsor that the intention in the
proposal is to vest constituent power in the people to amend the
Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal
in terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of
difficulties in terms of accepting the draft of Section 2, as written. Would
the sponsor agree with me that in the hierarchy of legal mandate,
constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy
of legal values, the Constitution is source of all legal mandates and that
therefore we require a great deal of circumspection in the drafting and in
the amendments of the Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent

power we have a separate article in the constitution that would
specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are

drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the Constitution
by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed
in the hands of the National Assembly, not unless we can incorporate into
this provision the mechanics that would adequately cover all the
conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to
AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that this
matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the

13
 revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision. 34

xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by providing this

process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing
provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while

ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of
the Constitution. That was the sense that was conveyed by the
Committee.

MS. AQUINO. In other words, the Committee was attempting to

distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas the process of initiation to amend, which is
given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the

entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed

amendment after taking into account the modifications submitted by the
sponsor himself and the honorable Commissioners Guingona, Monsod,
Rama, Ople, de los Reyes and Romulo. The modified amendment in
substitution of the proposed Section 2 will now read as follows: "SECTION
2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF
AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

14
 THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed

amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that
it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible

for the legislature to set forth certain procedures to carry out the
initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper
form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. ROMULO. But the procedures, including the determination of the

proper form for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate.
In other words, none of the procedures to be proposed by the legislative
body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures

which I have discussed be legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed

amendment on line 1 refers to "amendment." Does it not cover the word

15
 "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision"

should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments

through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what
is involved is an amendment to the Constitution. To amend a Constitution
would ordinarily require a proposal by the National Assembly by a vote
of three-fourths; and to call a constitutional convention would require a
higher number. Moreover, just to submit the issue of calling a
constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made
more rigorous and difficult than probably initiating an ordinary legislation
or putting an end to a law proposed by the National Assembly by way of
a referendum. I cannot agree to reducing the requirement approved by
the Committee on the Legislative because it would require another voting
by the Committee, and the voting as precisely based on a requirement of
10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the
Legislative or on the National Assembly on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final version,
which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads

as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

40
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

The entire proposed Article on Amendments or Revisions was approved on second reading on 9
July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed
to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof,
the Article was again approved on Second and Third Readings on 1 August 1986. 42

16
However, the Committee on Style recommended that the approved Section 2 be amended by changing
"percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second
paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the
exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of
Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section
2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No.
6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through
the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment
by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be
carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt
with the initiative and referendum mentioned
48
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, which dealt with the
subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article
X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill
No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill
No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50and by the
House of Representatives. 51 This approved bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an
initiative on amendments to the Constitution. The said section reads:

17
 Sec. 2. Statement and Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is
confined only to proposals to AMEND. The people are not accorded the power to "directly
propose, enact, approve, or reject, in whole or in part, the Constitution" through the system
of initiative. They can only do so with respect to "laws, ordinances, or resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of
Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and
appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the
Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements)
restates the constitutional requirements as to the percentage of the registered voters who must submit
the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the
contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other
things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed,
as the case may be. It does not include, as among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads
in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition. (Emphasis
supplied).

18
 The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or
repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right
of the people to directly propose amendments to the Constitution is far more important than the initiative
on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under
the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle
II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room
for doubt that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be
adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments
of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis
and clearer understanding:

Sec. 3. Definition of terms —

xxx xxx xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on
amendments to the Constitution. 53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane
to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of
Section 9, which reads:

19
 (b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an
election called for the purpose shall become effective fifteen (15) days after certification
and proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies
of local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law,
may file a petition for indirect initiative with the House of Representatives, and other
legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions
for both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and
referendum. It reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local legislative body to enact the
said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special
attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following:

20
(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of
initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters
for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be
approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of
voters who should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to
the Constitution by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:

21
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules
and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case
of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the
law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented
by the delegate; and (b) fixes a standard — the limits of which are sufficiently determinate and
determinable — to which the delegate must conform in the performance of his functions. 61 A sufficient
standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the
public agency to apply it. It indicates the circumstances under which the legislative command is to be
effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably
failed to satisfy both requirements in subordinate legislation. The delegation of the power to the
COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the
exercise of the right of the people to directly propose amendments to the Constitution through the system
of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under
Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein
are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient
standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN

ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC
the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.

22
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative
on the Constitution must be signed by at least 12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does
not contain signatures of the required number of voters. Delfin himself admits that he has not yet
gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to
gather signatures. Without the required signatures, the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is
the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the
form of the petition; 63(2) to issue through its Election Records and Statistics Office a certificate on the
total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars,
in the establishment of signature stations; 65 and (4) to verify, through its election registrars, the
signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used
in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must
have known that the petition does not fall under any of the actions or proceedings under the COMELEC
Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a
docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition
was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6
December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to
file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with
grave abuse of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits
of elective national and local officials is an amendment to, and not a revision of, the Constitution is
rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law
shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the
right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

23
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules
and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Padilla, J., took no part.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the
COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and
COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to
amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to
stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments
to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with
the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the
legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the
essence of the law, the spirit which gives life to its enactment. 2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to
propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history
of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17
was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom,
Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances

24
or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt,
Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In
checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the
Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis
of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by
the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle remained
applicable, the 1981 amendments to the Constitution of 1973 ensured presidential
dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between the
Legislature and the Executive departments. Transcending changes in the exercise of
legislative power is the declaration in the Philippine Constitution that the Philippines is a
republican state where sovereignty resides in the people and all sovereignty emanates
from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system of
initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary
powers since reserve powers are given to the people expressly. Section 32 of the same
Article mandates Congress to pass at the soonest possible time, a bill on referendum and
initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the
power to directly propose amendments to the Constitution through initiative, upon
petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed on
Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum
under Philippine Law. He cited Section 99 of the Local Government Code which vests in
the barangay assembly the power to initiate legislative processes, decide the holding of
plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the
power of initiative and referendum. He added that the holding of barangay plebiscites
and referendum are likewise provided in Sections 100 and 101 of the same Code.

25
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as part
of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the
instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are Alaska,
Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other
states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative
and referendum apply is also without limitation, except for emergency measures, which
are likewise incorporated in House Bill No. 21505. He added that the procedure provided
by the Bill from the filing of the petition, the requirements of a certain percentage of
supporters to present a proposition, to the submission to electors are substantially similar
to the provisions in American laws. Although an infant in Philippine political structure, the
system of initiative and referendum, he said, is a tried and tested system in other
jurisdictions, and the Bill is patterned after American experience.

He further explained that the bill has only 12 sections, and recalled that the Constitutional
Commissioners saw the system of the initiative and referendum as an instrument which
can be used should the legislature show itself to be indifferent to the needs of the people.
This is the reason, he claimed, why now is an opportune time to pass the Bill even as he
noted the felt necessity of the times to pass laws which are necessary to safeguard
individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as advocated
in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for the
consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by Congress;
and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections
(COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on measures
that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of
plebiscite by presenting a petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of registered voters at which
every legislative district is represented by at least three percent of the registered voters

26
 thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the
sufficiency of the petition, publish the same, and set the date of the referendum within
45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required number
of votes, it shall become effective 15 days following the completion of its publication in
the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to approve
House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech together
with the footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the
Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero
III in his sponsorship remarks, viz: 7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular
democracy ever since, especially in the so-called parliament of the streets. A substantial
segment of the population feels, he said, that the form of democracy is there, but not the
reality or substance of it because of the increasingly elitist approach of their
representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose amendments
to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X;
and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten the
politization of the citizenry, aid the government in forming an enlightened public opinion,
and produce more responsive legislation. The passage of the Bill will also give street
parliamentarians the opportunity to articulate their ideas in a democratic forum, he
added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that
it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill
No. 21505 will show that the Members can set aside their personal and political
consideration for the greater good of the people.

27
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a
Bicameral Conference Committee. 8 In the meeting of the Committee on June 6, 1989, 9 the
members agreed that the two (2) bills should be consolidated and that the consolidated version
should include people's initiative to amend the Constitution as contemplated by House Bill No.
21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because this is new
in our political system, the Senate decided on a more cautious approach
and limiting it only to the local government units because even with that
stage where . . . at least this has been quite popular, ano? It has been
attempted on a national basis. Alright. There has not been a single
attempt. Now, so, kami limitado doon. And, second, we consider also that
it is only fair that the local legislative body should be given a chance to
adopt the legislation bill proposed, right? Iyong sinasabing indirect
system of initiative. If after all, the local legislative assembly or body is
willing to adopt it in full or in toto, there ought to be any reason for
initiative, ano for initiative. And, number 3, we feel that there should be
some limitation on the frequency with which it should be applied.
Number 4, na the people, thru initiative, cannot enact any ordinance that
is beyond the scope of authority of the local legislative body, otherwise,
my God, mag-aassume sila ng power that is broader and greater than the
grant of legislative power to the Sanggunians. And Number 5, because of
that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare it
null and void for want of authority. Ha, di ba? I mean it is beyond powers
of local government units to enact. Iyon ang main essence namin, so we
concentrated on that. And that is why . . . so ang sa inyo naman includes
iyon sa Constitution, amendment to the Constitution eh . . . national laws.
Sa amin, if you insist on that, alright, although we feel na it will in effect
become a dead statute. Alright, and we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito, let us not discuss anymore kung
alin and magiging basic bill, ano, whether it is the Senate Bill or whether
it is the House bill. Logically it should be ours sapagkat una iyong sa amin
eh. It is one of the first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay. ____
gagawin na natin na consolidation of both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so

and so. 10

28
When the consolidated bill was presented to the House for approval, then Congressman Roco
upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's
initiative to amend the Constitution. The record of the House Representative states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is

recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing

provisions between Senate Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions are
totally intact in the bill. The Senators ironically provided for local initiative
and referendum and the House Representatives correctly provided for
initiative and referendum on the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor
Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two
bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local initiative
and referendum, whereas in the House version, we provided purely for
national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two provisions

were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

29
 MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with

the provision of the Constitution whereby it mandates this Congress to
enact the enabling law, so that we shall have a system which can be done
every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments

in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.

MR. ALBANO. Therefore, basically, there was no substantial difference

between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I said
earlier, ironically was about local, provincial and municipal legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on
Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to
amend the Constitution, it is our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not
be consistent with the strict letter of the law and this ruling is as old as the mountain. We have
also held that where a law is susceptible of more than one interpretation, that interpretation
which will most tend to effectuate the manifest intent of the legislature will be adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement
the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to

30
reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is
replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by
the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative district
must be represented by at least three per centum (3%) of the registered voters therein." It also states that
"(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat
its intent which it itself concedes is to implement people's initiative to propose amendments to the
Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy
thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for
laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators
to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose
like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a
law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many
laws contain words which have not been used accurately. But the use of inapt or inaccurate language or
words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true
with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words
will be construed as carrying the meaning the legislature intended that they bear, although such a
construction necessitates a departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again,
the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a
statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very
little weight, and they can never control the plain terms of the enacting clauses. 14

31
All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac,
then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend
the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the
COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation
of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru
former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue
delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to fill
details in the execution, enforcement or administration of a law, it is essential, to forestall
a violation of the principle of separation of powers, that said law: (a) be complete in itself
— it must set forth therein the policy to be executed, carried out or implemented by the
delegate — and (b) to fix standard — the limits of which are sufficiently determinate or
determinable — to which the delegate must conform in the performance of his functions.
Indeed, without a statutory declaration of policy, which is the essence of every law, and,
without the aforementioned standard, there would be no means to determine, with
reasonable certainty, whether the delegate has acted within or beyond the scope of his
authority. Hence, he could thereby arrogate upon himself the power, not only to make
the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances, and, consequently,
undermining the very foundation of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the enforcement of
a law. It does not enunciate any policy to be carried out or implemented by the President.
Neither does it give a standard sufficiently precise to avoid the evil effects above referred
to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the
law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the
law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of
signatures necessary to start a people's initiative, 18 directs how initiative proceeding is
commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition

32
is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters
may not be the subject of any initiative. 24 By any measure, these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the
boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances
under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735,
it cannot be said that Congress totally transferred its power to enact the law implementing people's
initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the
procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the
Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to
enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is possible

for the legislature to set forth certain procedures to carry out the
initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper
form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate.
In other words, none of the procedures to be proposed by the legislative
body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures

which I have discussed be legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In
response to questions of Commissioner Romulo, Davide explained the extent of the power of the
legislature over the process: it could for instance, prescribe the 'proper form before (the
amendment) is submitted to the people,' it could authorize another body to check the proper
form. It could also authorize the COMELEC, for instance, to check the authenticity of the
signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature

33
 is to impair the substantive right of the people to initiate amendments to the Constitution. It is
not, however, prohibited from legislating the procedure to enforce the people's right of initiative
or to delegate it to another body like the COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their promulgation.
As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard,
the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders of
the military commander are to conform, or require findings to be made as a prerequisite
to any order. But the Executive Order, the Proclamations and the statute are not to be
read in isolation from each other. They were parts of a single program and must be judged
as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order
and of the Proclamations. The Proclamations themselves followed a standard authorized
by the Executive Order — the necessity of protecting military resources in the designated
areas against espionage and sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at
the law cannot miss them. They were not written by our legislators in invisible ink. The policy and
standards can also be found in no less than section 2, Article XVII of the Constitution on
Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A.
No. 6735 are insufficient for in other cases we have upheld as adequate more general standards
such as "simplicity and dignity," 30 "public interest," 31"public welfare," 32 "interest of law and
order," 33 "justice and equity," 34 "adequate and efficient instruction," 35"public safety," 36 "public
policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing
domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A
due regard and respect to the legislature, a co-equal and coordinate branch of government,
should counsel this Court to refrain from refusing to effectuate laws unless they are clearly
unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The
inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started
when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the
Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the
petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The
petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by
the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and
Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order
and/or writ of preliminary injunction.

34
The petition on its face states no cause of action against the Pedrosas. The only allegation against the
Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature
drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was
not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from
conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996,
we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to
amend the Constitution." It is not enough for the majority to lift the temporary restraining order against
the Pedrosas. It should dismiss the petition and all motions for contempt against them without
equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of
signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which
provides that ". . . amendments to this Constitution may likewise be directly proposed by the people
through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the
Constitution that in a democratic and republican state "sovereignty resides in the people and all
government authority emanates from them." The Pedrosas are part of the people and their voice is part
of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize
them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their
organizations to effective and reasonable participation at all levels of social, political and economic
decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate
consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the
sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas
are participating in the political decision-making process of our people. The Constitution says their right
cannot be abridged without any ifs and buts. We cannot put a question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise
of their freedom of speech and expression and their right to petition the government for redress of
grievances. We have memorialized this universal right in all our fundamental laws from the Malolos
Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of
speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of
speech enervates the essence of the democratic creed of think and let think. For this reason, the
Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend
the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300.
No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no
irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and
we should not fear change. Mankind has long recognized the truism that the only constant in life is change
and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On
October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our
Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check

35
excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to
be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine
will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago,
or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving
the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of
the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a
robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court
cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering
of people empowerment. More important, the Court cannot seal the lips of people who are pro-change
but not those who are anti-change without concerting the debate on charter change into a sterile talkaton.
Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any
infallibility.

Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit,
itself on all the issues raised and debated upon by the parties. What is essential at this time would only
be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his
capacity as a "founding member of the Movement for People's Initiative" and seeking through a people
initiative certain modifications on the 1987 Constitution, can properly be regarded and given its due
course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2,
Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the
petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would
require COMELEC to schedule "signature gathering all over the country," to cause the necessary
publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal
Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing
signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent
under the ponencia should be held to cover only the Delfin petition and must not be so understood as

36
having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right
is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves. The
postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us
that the vitality of government lies not so much in the strength of those who lead as in the consent of
those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with
the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court,
I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No.
6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to
directly propose constitutional amendments. Any opinion or view formulated by the Court at this point
would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by
the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional
amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-
written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to
cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more
significance to this declaration of principle for the people are now vested with power not only to propose,
enact or reject any act or law passed by Congress or by the local legislative body, but to propose
amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989
enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my
mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their
allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication. 3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of
Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b)
thereof is clear in providing that:

37
The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the general
intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in
isolation. The legislative intent behind every law is to be extracted from the statute as a whole. 5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an election called for the
purpose". 6The same section, in enumerating the three systems of initiative, included an "initiative on the
constitution which refers to a petition proposing amendments to the constitution" 7 Paragraph (e) again
of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is
approved or rejected by the people" And as to the material requirements for an initiative on the
Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein. Initiative on the constitution may be exercised only after five (5) years
from the ratification of the 1987 Constitution and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative. "A
legal provision", the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no
effect whatsoever thereon". 8 That this is the legislative intent is further shown by the
deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference Committee

Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was
noted:

MR. ROCO. On the Conference Committee Report on the disagreeing

provisions between Senate Bill No. 17 and the consolidated House Bill No.
21505 which refers to the system providing for the initiative and
referendum, fundamentally, Mr. Speaker, we consolidated the Senate
and the House versions, so both versions are totally intact in the bill. The
Senators ironically provided for local initiative and referendum and the
House of Representatives correctly provided for initiative and
referendum an the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

38
 THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor
Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two
bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local initiative
and referendum, whereas in the House version, we provided purely for
national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions

were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with

the provision of the Constitution to enact the enabling law, so that we
shall have a system which can be done every five years. Is it five years in
the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments

to the 1987 Constitution, it is every five years." (Id. [Journal and Record
of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in
Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as

39
 approved and enacted into law, the proposal included initiative on both the Constitution
and ordinary laws. 9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction
as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the
enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action
(such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C
and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is
so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of
the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional
requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised only after five (5) years
from the ratification of the 1987 Constitution and only once every five (5) years
thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence, therefore, of
an appropriate petition before the Commission on Elections, any determination of whether
private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents' petition
for initiative before public respondent Commission on Elections until the same be supported by proof of
strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory"
Delfin Petition.

40
(2) While the Constitution allows amendments to "be directly proposed by the people through initiative,"
there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative
on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required number of
signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every
legislative district — no public funds may be spent and no government resources may be used in an
initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such
signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended
at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters
of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and
render inutile the people's right to change the basic law. At the very least, the majority holds the right
hostage to congressional discretion on whether to pass a new law to implement it, when there is already
one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section
2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent
to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What
Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future
effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes
a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the
right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300
Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the
legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on
the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S.
Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements
the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer
repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic
Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be)
liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of

41
the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of
people's initiatives ought to be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of
initiative on the Constitution and initiative and referendum on national and local laws," not by the
incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac,
Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission,
and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort
to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it
is void in reference to constitutional amendments. There is no basis for such differentiation. The source
of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority
to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court
on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising
their right of initiative. In fact, I believe that such restraining order as against private respondents should
not have been issued, in the first place. While I agree that the Comelec should be stopped from using
public funds and government resources to help them gather signatures, I firmly believe that this Court has
no power to restrain them from exercising their right of initiative. The right to propose amendments to
the Constitution is really a species of the right of free speech and free assembly. And certainly, it would
be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to
his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to
the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice
Holmes wrote, "freedom for the thought that we hate." 5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and
recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized
legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed
expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their
final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as
their reserved instruments to exact transparency, accountability and faithfulness from their chosen
leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their
legitimate exercise should be carefully nurtured and zealously protected.

42
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent
Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other
grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18
December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising
their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the
COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and
COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to
amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to
stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments
to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with
the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the
legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the
essence of the law, the spirit which gives life to its enactment. 2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to
propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history
of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17
was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom,
Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances
or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt,
Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In
checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the
Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis
of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by
the 1935 Constitution saw the application of the principle of separation of powers.

43
2. While under the parliamentary system of the 1973 Constitution the principle remained
applicable, the 1981 amendments to the Constitution of 1973 ensured presidential
dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between the
Legislature and the Executive departments. Transcending changes in the exercise of
legislative power is the declaration in the Philippine Constitution that the Philippines is a
republican state where sovereignty resides in the people and all sovereignty emanates
from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system of
initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary
powers since reserve powers are given to the people expressly. Section 32 of the same
Article mandates Congress to pass at the soonest possible time, a bill on referendum and
initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the
power to directly propose amendments to the Constitution through initiative, upon
petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed on
Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum
under Philippine Law. He cited Section 99 of the Local Government Code which vests in
the barangay assembly the power to initiate legislative processes, decide the holding of
plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the
power of initiative and referendum. He added that the holding of barangay plebiscites
and referendum are likewise provided in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as part
of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the
instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are Alaska,
Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other
states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative
and referendum apply is also without limitation, except for emergency measures, which
are likewise incorporated in House Bill No. 21505. He added that the procedure provided

44
by the Bill from the filing of the petition, the requirements of a certain percentage of
supporters to present a proposition, to the submission to electors are substantially similar
to the provisions in American laws. Although an infant in Philippine political structure, the
system of initiative and referendum, he said, is a tried and tested system in other
jurisdictions, and the Bill is patterned after American experience.

He further explained that the bill has only 12 sections, and recalled that the Constitutional
Commissioners saw the system of the initiative and referendum as an instrument which
can be used should the legislature show itself to be indifferent to the needs of the people.
This is the reason, he claimed, why now is an opportune time to pass the Bill even as he
noted the felt necessity of the times to pass laws which are necessary to safeguard
individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as advocated
in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for the
consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by Congress;
and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections
(COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on measures
that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of
plebiscite by presenting a petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of registered voters at which
every legislative district is represented by at least three percent of the registered voters
thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the
sufficiency of the petition, publish the same, and set the date of the referendum within
45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required number
of votes, it shall become effective 15 days following the completion of its publication in
the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to approve
House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech together
with the footnotes be reproduced as part of the Congressional Records.

45
The same sentiment as to the bill's intent to implement people's initiative to amend the
Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero
III in his sponsorship remarks, viz: 7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular
democracy ever since, especially in the so-called parliament of the streets. A substantial
segment of the population feels, he said, that the form of democracy is there, but not the
reality or substance of it because of the increasingly elitist approach of their
representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose amendments
to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X;
and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten the
politization of the citizenry, aid the government in forming an enlightened public opinion,
and produce more responsive legislation. The passage of the Bill will also give street
parliamentarians the opportunity to articulate their ideas in a democratic forum, he
added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that
it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill
No. 21505 will show that the Members can set aside their personal and political
consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a
Bicameral Conference Committee. 8 In the meeting of the Committee on June 6, 1989, 9 the
members agreed that the two (2) bills should be consolidated and that the consolidated version
should include people's initiative to amend the Constitution as contemplated by House Bill No.
21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because this is new
in our political system, the Senate decided on a more cautious approach
and limiting it only to the local government units because even with that
stage where . . . at least this has been quite popular, ano? It has been
attempted on a national basis. Alright. There has not been a single
attempt. Now, so, kami limitado doon. And, second, we consider also that
it is only fair that the local legislative body should be given a chance to

46
 adopt the legislation bill proposed, right? Iyong sinasabing indirect
system of initiative. If after all, the local legislative assembly or body is
willing to adopt it in full or in toto, there ought to be any reason for
initiative, ano for initiative. And, number 3, we feel that there should be
some limitation on the frequency with which it should be applied.
Number 4, na the people, thru initiative, cannot enact any ordinance that
is beyond the scope of authority of the local legislative body, otherwise,
my God, mag-aassume sila ng power that is broader and greater than the
grant of legislative power to the Sanggunians. And Number 5, because of
that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare it
null and void for want of authority. Ha, di ba? I mean it is beyond powers
of local government units to enact. Iyon ang main essence namin, so we
concentrated on that. And that is why . . . so ang sa inyo naman includes
iyon sa Constitution, amendment to the Constitution eh . . . national laws.
Sa amin, if you insist on that, alright, although we feel na it will in effect
become a dead statute. Alright, and we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito, let us not discuss anymore kung
alin and magiging basic bill, ano, whether it is the Senate Bill or whether
it is the House bill. Logically it should be ours sapagkat una iyong sa amin
eh. It is one of the first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay. ____
gagawin na natin na consolidation of both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so

and so. 10

When the consolidated bill was presented to the House for approval, then Congressman Roco
upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's
initiative to amend the Constitution. The record of the House Representative states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is

recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing

provisions between Senate Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions are
totally intact in the bill. The Senators ironically provided for local initiative
and referendum and the House Representatives correctly provided for
initiative and referendum on the Constitution and on national legislation.

47
I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor
Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two
bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local initiative
and referendum, whereas in the House version, we provided purely for
national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two provisions

were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with

the provision of the Constitution whereby it mandates this Congress to
enact the enabling law, so that we shall have a system which can be done
every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments

in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.

48
 MR. ALBANO. Therefore, basically, there was no substantial difference
between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I said
earlier, ironically was about local, provincial and municipal legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on
Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to
amend the Constitution, it is our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not
be consistent with the strict letter of the law and this ruling is as old as the mountain. We have
also held that where a law is susceptible of more than one interpretation, that interpretation
which will most tend to effectuate the manifest intent of the legislature will be adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement
the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to
reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is
replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by
the people.

49
Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative district
must be represented by at least three per centum (3%) of the registered voters therein." It also states that
"(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat
its intent which it itself concedes is to implement people's initiative to propose amendments to the
Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy
thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for
laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators
to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose
like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a
law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many
laws contain words which have not been used accurately. But the use of inapt or inaccurate language or
words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true
with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words
will be construed as carrying the meaning the legislature intended that they bear, although such a
construction necessitates a departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again,
the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a
statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very
little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac,
then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend
the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the
COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation
of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru
former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue
delegation of legislative power, viz:

50
 xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to fill
details in the execution, enforcement or administration of a law, it is essential, to forestall
a violation of the principle of separation of powers, that said law: (a) be complete in itself
— it must set forth therein the policy to be executed, carried out or implemented by the
delegate — and (b) to fix standard — the limits of which are sufficiently determinate or
determinable — to which the delegate must conform in the performance of his functions.
Indeed, without a statutory declaration of policy, which is the essence of every law, and,
without the aforementioned standard, there would be no means to determine, with
reasonable certainty, whether the delegate has acted within or beyond the scope of his
authority. Hence, he could thereby arrogate upon himself the power, not only to make
the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances, and, consequently,
undermining the very foundation of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the enforcement of
a law. It does not enunciate any policy to be carried out or implemented by the President.
Neither does it give a standard sufficiently precise to avoid the evil effects above referred
to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the
law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the
law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of
signatures necessary to start a people's initiative, 18 directs how initiative proceeding is
commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition
is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters
may not be the subject of any initiative. 24 By any measure, these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the
boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances
under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735,
it cannot be said that Congress totally transferred its power to enact the law implementing people's
initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the
procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the
Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to
enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is possible

for the legislature to set forth certain procedures to carry out the
initiative. . . ?

51
 MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper
form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate.
In other words, none of the procedures to be proposed by the legislative
body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures

which I have discussed be legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In
response to questions of Commissioner Romulo, Davide explained the extent of the power of the
legislature over the process: it could for instance, prescribe the 'proper form before (the
amendment) is submitted to the people,' it could authorize another body to check the proper
form. It could also authorize the COMELEC, for instance, to check the authenticity of the
signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature
is to impair the substantive right of the people to initiate amendments to the Constitution. It is
not, however, prohibited from legislating the procedure to enforce the people's right of initiative
or to delegate it to another body like the COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their promulgation.
As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard,
the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders of
the military commander are to conform, or require findings to be made as a prerequisite
to any order. But the Executive Order, the Proclamations and the statute are not to be
read in isolation from each other. They were parts of a single program and must be judged
as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order

52
 and of the Proclamations. The Proclamations themselves followed a standard authorized
by the Executive Order — the necessity of protecting military resources in the designated
areas against espionage and sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at
the law cannot miss them. They were not written by our legislators in invisible ink. The policy and
standards can also be found in no less than section 2, Article XVII of the Constitution on
Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A.
No. 6735 are insufficient for in other cases we have upheld as adequate more general standards
such as "simplicity and dignity," 30 "public interest," 31"public welfare," 32 "interest of law and
order," 33 "justice and equity," 34 "adequate and efficient instruction," 35"public safety," 36 "public
policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing
domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A
due regard and respect to the legislature, a co-equal and coordinate branch of government,
should counsel this Court to refrain from refusing to effectuate laws unless they are clearly
unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The
inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started
when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the
Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the
petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The
petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by
the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and
Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order
and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against the
Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature
drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was
not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from
conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996,
we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to
amend the Constitution." It is not enough for the majority to lift the temporary restraining order against
the Pedrosas. It should dismiss the petition and all motions for contempt against them without
equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of
signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which
provides that ". . . amendments to this Constitution may likewise be directly proposed by the people
through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the
Constitution that in a democratic and republican state "sovereignty resides in the people and all
government authority emanates from them." The Pedrosas are part of the people and their voice is part

53
of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize
them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their
organizations to effective and reasonable participation at all levels of social, political and economic
decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate
consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the
sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas
are participating in the political decision-making process of our people. The Constitution says their right
cannot be abridged without any ifs and buts. We cannot put a question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise
of their freedom of speech and expression and their right to petition the government for redress of
grievances. We have memorialized this universal right in all our fundamental laws from the Malolos
Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of
speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of
speech enervates the essence of the democratic creed of think and let think. For this reason, the
Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend
the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300.
No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no
irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and
we should not fear change. Mankind has long recognized the truism that the only constant in life is change
and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On
October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our
Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check
excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to
be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine
will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago,
or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving
the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of
the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a
robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court
cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering
of people empowerment. More important, the Court cannot seal the lips of people who are pro-change
but not those who are anti-change without concerting the debate on charter change into a sterile talkaton.
Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any
infallibility.

Melo and Mendoza, JJ., concur.

54
VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit,
itself on all the issues raised and debated upon by the parties. What is essential at this time would only
be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his
capacity as a "founding member of the Movement for People's Initiative" and seeking through a people
initiative certain modifications on the 1987 Constitution, can properly be regarded and given its due
course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2,
Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the
petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would
require COMELEC to schedule "signature gathering all over the country," to cause the necessary
publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal
Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing
signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent
under the ponencia should be held to cover only the Delfin petition and must not be so understood as
having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right
is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves. The
postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us
that the vitality of government lies not so much in the strength of those who lead as in the consent of
those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with
the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court,
I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No.
6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to
directly propose constitutional amendments. Any opinion or view formulated by the Court at this point
would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

55
I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by
the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional
amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-
written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to
cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more
significance to this declaration of principle for the people are now vested with power not only to propose,
enact or reject any act or law passed by Congress or by the local legislative body, but to propose
amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989
enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my
mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their
allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication. 3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of
Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b)
thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the general
intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in
isolation. The legislative intent behind every law is to be extracted from the statute as a whole. 5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an election called for the
purpose". 6The same section, in enumerating the three systems of initiative, included an "initiative on the
constitution which refers to a petition proposing amendments to the constitution" 7 Paragraph (e) again
of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is
approved or rejected by the people" And as to the material requirements for an initiative on the
Constitution, Section 5(b) distinctly enumerates the following:

56
 A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein. Initiative on the constitution may be exercised only after five (5) years
from the ratification of the 1987 Constitution and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative. "A
legal provision", the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no
effect whatsoever thereon". 8 That this is the legislative intent is further shown by the
deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference Committee

Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was
noted:

MR. ROCO. On the Conference Committee Report on the disagreeing

provisions between Senate Bill No. 17 and the consolidated House Bill No.
21505 which refers to the system providing for the initiative and
referendum, fundamentally, Mr. Speaker, we consolidated the Senate
and the House versions, so both versions are totally intact in the bill. The
Senators ironically provided for local initiative and referendum and the
House of Representatives correctly provided for initiative and
referendum an the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor
Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two
bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

57
 MR. ROCO. In fact, the Senate version provided purely for local initiative
and referendum, whereas in the House version, we provided purely for
national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions

were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with

the provision of the Constitution to enact the enabling law, so that we
shall have a system which can be done every five years. Is it five years in
the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments

to the 1987 Constitution, it is every five years." (Id. [Journal and Record
of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in
Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the Constitution
and ordinary laws. 9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction
as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the
enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action
(such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C
and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is
so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of
the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional
requirement.

Thus:

58
 A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised only after five (5) years
from the ratification of the 1987 Constitution and only once every five (5) years
thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence, therefore, of
an appropriate petition before the Commission on Elections, any determination of whether
private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents' petition
for initiative before public respondent Commission on Elections until the same be supported by proof of
strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory"
Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through initiative,"
there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative
on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required number of
signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every
legislative district — no public funds may be spent and no government resources may be used in an
initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such
signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended
at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters
of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and
render inutile the people's right to change the basic law. At the very least, the majority holds the right

59
hostage to congressional discretion on whether to pass a new law to implement it, when there is already
one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section
2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent
to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What
Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future
effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes
a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the
right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300
Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the
legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on
the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S.
Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements
the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer
repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic
Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be)
liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of
the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of
people's initiatives ought to be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of
initiative on the Constitution and initiative and referendum on national and local laws," not by the
incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac,
Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission,
and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort
to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it
is void in reference to constitutional amendments. There is no basis for such differentiation. The source
of and authority for the Resolution is the same law, RA 6735.

60
I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority
to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court
on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising
their right of initiative. In fact, I believe that such restraining order as against private respondents should
not have been issued, in the first place. While I agree that the Comelec should be stopped from using
public funds and government resources to help them gather signatures, I firmly believe that this Court has
no power to restrain them from exercising their right of initiative. The right to propose amendments to
the Constitution is really a species of the right of free speech and free assembly. And certainly, it would
be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to
his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to
the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice
Holmes wrote, "freedom for the thought that we hate." 5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and
recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized
legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed
expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their
final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as
their reserved instruments to exact transparency, accountability and faithfulness from their chosen
leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their
legitimate exercise should be carefully nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent
Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other
grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18
December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising
their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

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

61
ALTERNATIVE LAW GROUPS, INC., Intervenor.

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

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA,
JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

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

ATTY. PETE QUIRINO QUADRA, Intervenor.

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

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel
Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL
BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus,
GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by
Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR.
DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of
Health Action for Human Rights, Intervenors.

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

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL, Intervenors.

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

ARTURO M. DE CASTRO, Intervenor.

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

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

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

LUWALHATI RICASA ANTONINO, Intervenor.

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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO,

MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, Intervenors.

62
x ------------------------------------------------------- x

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.

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

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F.
BALAIS, Intervenors.

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

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.

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

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

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

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and
RANDALL TABAYOYONG, Intervenors.

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

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors.

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

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY
MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.

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

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

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

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO,
NICODEMO T. FERRER, and John Doe and Peter Doe,, Respondent.

63
DECISION

CARPIO, J.:

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections
("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado
("Lambino Group"), with other groups1 and individuals, commenced gathering signatures for an initiative
petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c)2 and Section
73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735").

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelve per centum (12%) of all registered voters, with each legislative district represented by at least
three per centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.

The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article
VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article
XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present Bicameral-
Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that
after due publication of their petition, the COMELEC should submit the following proposition in a
plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.7

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's
petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to
implement the initiative clause on proposals to amend the Constitution.9

64
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to
set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to
their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of
discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively,
the Lambino Group claims that Santiago binds only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign people."

In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification
of signatures and for "entertaining" the Lambino Group's petition despite the permanent injunction
in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners,
urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the
Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of
initiative."

Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino
Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed
grave abuse of discretion in relying on Santiago. On the other hand, the opposing intervenors11 hold the
contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering
and verification process; (3) the Lambino Group's compliance with the minimum requirement for the
percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987
Constitution;12 (4) the nature of the proposed changes as revisions and not mere amendments as provided
under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the
requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the
parties' memoranda, the Court considered the case submitted for resolution.

The Issues

The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution
on amendments to the Constitution through a people's initiative;

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the
Constitution; and

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino
Group's petition.

The Ruling of the Court

65
There is no merit to the petition.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic
requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion
is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct
Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's
initiative to propose amendments to the Constitution. This section states:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters of which every legislative district must be represented by at least three per centum of the
registered voters therein. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready to be
shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they
sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are
asked whether or not they want to propose this constitutional amendment.

MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for
signature.13 (Emphasis supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers
plainly stated that "before they sign there is already a draft shown to them." The framers also
"envisioned" that the people should sign on the proposal itself because the proponents must "prepare
that proposal and pass it around for signature."

The essence of amendments "directly proposed by the people through initiative upon a petition" is
that the entire proposal on its face is a petition by the people. This means two essential elements must

66
be present. First, the people must author and thus sign the entire proposal. No agent or representative
can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a
petition.

These essential elements are present only if the full text of the proposed amendments is first shown to
the people who express their assent by signing such complete proposal in a petition. Thus, an amendment
is "directly proposed by the people through initiative upon a petition" only if the people sign on a
petition that contains the full text of the proposed amendments.

The full text of the proposed amendments may be either written on the face of the petition, or attached
to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every
one of the several millions of signatories to the petition had seen the full text of the proposed
amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that
every one of the millions of signatories had seen the full text of the proposed amendments before signing.

The framers of the Constitution directly borrowed14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States15 which allow
initiative petitions, the unbending requirement is that the people must first see the full text of the
proposed amendments before they sign to signify their assent, and that the people must sign on an
initiative petition that contains the full text of the proposed amendments.16

The rationale for this requirement has been repeatedly explained in several decisions of various courts.
Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the
First Circuit Court of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the signature has not
first seen what it is that he or she is signing. Further, and more importantly, loose interpretation
of the subscription requirement can pose a significant potential for fraud. A person permitted to
describe orally the contents of an initiative petition to a potential signer, without the signer having
actually examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might not be to the
signer's liking. This danger seems particularly acute when, in this case, the person giving the
description is the drafter of the petition, who obviously has a vested interest in seeing that it
gets the requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are
described in similar terms. x x x (The purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently evaluate whether to sign the initiative
petition."); x x x (publication of full text of amended constitutional provision required because it
is "essential for the elector to have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he
would be required to vote in the dark.") (Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that
which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19

67
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full
text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly
show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In
particular, the deliberations of the Constitutional Commission explicitly reveal that the framers
intended that the people must first see the full text of the proposed amendments before they sign, and
that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No.
6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people
must sign the "petition x x x as signatories."

The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested parties
who can impartially explain the advantages and disadvantages of the proposed amendments to the
people. The proponents present favorably their proposal to the people and do not present the arguments
against their proposal. The proponents, or their supporters, often pay those who gather the signatures.

Thus, there is no presumption that the proponents observed the constitutional requirements in gathering
the signatures. The proponents bear the burden of proving that they complied with the constitutional
requirements in gathering the signatures - that the petition contained, or incorporated by attachment,
the full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper that the
people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature
sheet20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October
2006. The signature sheet with this Court during the oral arguments was the signature sheet attached21 to
the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full:

Province: City/Municipality: No. of

Legislative District: Barangay:
Verified

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER
EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall
form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof.

Precinct Name Address Birthdate Signature Verification

Number
MM/DD/YY

68
 Last Name, First
Name, M.I.
1
2
3
4
5
6
7
8
9
10
_________________ _________________ __________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the
signature sheet. Neither does the signature sheet state that the text of the proposed changes is
attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on
26 September 2006.

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not show
to the people the draft of the proposed changes before they are asked to sign the signature sheet.
Clearly, the signature sheet is not the "petition" that the framers of the Constitution envisioned when
they formulated the initiative clause in Section 2, Article XVII of the Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August
2006, the Lambino Group circulated, together with the signature sheets, printed copies of the Lambino
Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When asked if his
group also circulated the draft of their amended petition filed on 30 August 2006 with the COMELEC, Atty.
Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated
that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the
25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006
amended petition almost seven months earlier in February 2006 when they started gathering signatures.
Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of
the 30 August 2006 amended petition, filed with the COMELEC, states as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a
registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown
by ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass of
signatories hereto. (Emphasis supplied)

69
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the full
text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON

CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a
common stand on the approach to support the proposals of the People's Consultative Commission
on Charter Change;

WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for
Constitutional Reforms signed by the members of the ULAP and the majority coalition of the
House of Representatives in Manila Hotel sometime in October 2005;

WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency
to recommend amendments to the 1987 Constitution has submitted its final report sometime in
December 2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which militates
against the use of the expeditious form of amending the 1987 Constitution;

WHEREAS, subject to the ratification of its institutional members and the failure of Congress to
amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the
constitutional reform agenda through People's Initiative and Referendum without prejudice to
other pragmatic means to pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF

THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC)
OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH
PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;

DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the
Century Park Hotel, Manila.23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006
petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change through
people's initiative and referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission24 are vastly different from the proposed changes of the Lambino Group in the
25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC.

70
For example, the proposed revisions of the Consultative Commission affect all provisions of the existing
Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound
impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that
the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to
affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory
Provisions.

The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing
of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However,
ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation
of the draft petition, together with the signature sheets, six months before the filing with the COMELEC.
On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they
circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not
refer at all to the draft petition or to the Lambino Group's proposed changes.

In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared:

After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged
in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed
amendments.

The Lambino Group did not allege that they were amending the petition because the amended petition
was what they had shown to the people during the February to August 2006 signature-gathering. Instead,
the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly
reflect their proposed amendments."

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition
with the COMELEC that they circulated printed copies of the draft petition together with the signature
sheets. Likewise, the Lambino Group did not allege in their present petition before this Court that they
circulated printed copies of the draft petition together with the signature sheets. The signature sheets do
not also contain any indication that the draft petition is attached to, or circulated with, the signature
sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:

[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who
did not read the measure attached to a referendum petition cannot question his signature on
the ground that he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v.
Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature
sheets circulated together with the petition for initiative filed with the COMELEC below, are
presumed to have understood the proposition contained in the petition. (Emphasis supplied)

The Lambino Group's statement that they circulated to the people "the petition for initiative filed with
the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines

71
(Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature
sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to mention the amended petition. This
contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was the
draft of the amended petition of 30 August 2006.

The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the
measure attached to a referendum petition cannot question his signature on the ground that he did not
understand the nature of the act." The Lambino Group quotes an authority that cites a proposed
change attached to the petition signed by the people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same authority the Lambino
Group quotes requires the people to sign on the petition itself.

Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with,
or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's
proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's
citation of Corpus Juris Secundum pulls the rug from under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August
2006 during the signature-gathering period, the draft of the petition or amended petition they filed later
with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that
they printed and circulated, together with the signature sheets, the petition or amended
petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the
signature-gathering period, the Lambino Group admitted circulating only very limited copies of the
petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of
the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added that he
also asked other supporters to print additional copies of the draft petition but he could not state with
certainty how many additional copies the other supporters printed. Atty. Lambino could only assure this
Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies.

Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly
admits that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of the
petition for initiative x x x."25 This admission binds the Lambino Group and establishes beyond any
doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority
of the people who signed the signature sheets.

Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy
each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company
attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have
circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people
signed each of these 100,000 signature sheets with the attached petition, the maximum number of people
who saw the petition before they signed the signature sheets would not exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature

72
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million
signatories the full text of the proposed changes. If ever, not more than one million signatories saw the
petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes,
either on the face of the signature sheets, or as attachment with an indication in the signature sheet of
such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and this admission
binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This
omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders
the initiative void for non-compliance with the constitutional requirement that the amendment must be
"directly proposed by the people through initiative upon a petition." The signature sheet is not the
"petition" envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full
text of the proposed changes before signing. They could not have known the nature and effect of the
proposed changes, among which are:

1. The term limits on members of the legislature will be lifted and thus members of Parliament
can be re-elected indefinitely;26

2. The interim Parliament can continue to function indefinitely until its members, who are almost
all the present members of Congress, decide to call for new parliamentary elections. Thus,
the members of the interim Parliament will determine the expiration of their own term of
office; 27

3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall
convene to propose further amendments or revisions to the Constitution.28

These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have inferred
or divined these proposed changes merely from a reading or rereading of the contents of the signature
sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people
during the signature-gathering that the elections for the regular Parliament would be held during the
2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the
text of the proposed changes belies this.

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:

Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of all local
government officials. x x x x (Emphasis supplied)

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Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with
the 2007 local elections. This section merely requires that the elections for the regular Parliament shall
be held simultaneously with the local elections without specifying the year.

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily
written the word "next" before the phrase "election of all local government officials." This would have
insured that the elections for the regular Parliament would be held in the next local elections following
the ratification of the proposed changes. However, the absence of the word "next" allows the interim
Parliament to schedule the elections for the regular Parliament simultaneously with any future local
elections.

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This
allows incumbent members of the House of Representatives to hold office beyond their current three-
year term of office, and possibly even beyond the five-year term of office of regular members of the
Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3
million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million
signatories, and even the entire nation.

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text
of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million
signatories had to rely on the verbal representations of Atty. Lambino and his group because the
signature sheets did not contain the full text of the proposed changes. The result is a grand deception on
the 6.3 million signatories who were led to believe that the proposed changes would require the holding
in 2007 of elections for the regular Parliament simultaneously with the local elections.

The Lambino Group's initiative springs another surprise on the people who signed the signature sheets.
The proposed changes mandate the interim Parliament to make further amendments or revisions to the
Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and
the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino
Group's initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when
the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people
in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a
petition that effectively contains two propositions, one of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the
unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared:

74
 Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial
responsibility is to mean anything, we cannot permit. The very broadness of the proposed
amendment amounts to logrolling because the electorate cannot know what it is voting on - the
amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The
ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The
ballot language in the instant case fails to do that. The very broadness of the proposal makes it
impossible to state what it will affect and effect and violates the requirement that proposed
amendments embrace only one subject. (Emphasis supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court
of Alaska warned against "inadvertence, stealth and fraud" in logrolling:

Whenever a bill becomes law through the initiative process, all of the problems that the single-subject
rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater
opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process. The drafters
of an initiative operate independently of any structured or supervised process. They often emphasize
particular provisions of their proposition, while remaining silent on other (more complex or less appealing)
provisions, when communicating to the public. x x x Indeed, initiative promoters typically use simplistic
advertising to present their initiative to potential petition-signers and eventual voters. Many voters will
never read the full text of the initiative before the election. More importantly, there is no process for
amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish
the initiative from the legislative process. (Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be
undertaken by the interim Parliament as a constituent assembly. The people who signed the signature
sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to
amend or revise again the Constitution within 45 days from ratification of the proposed changes, or
before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has
the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the
initiative proponents want the interim Parliament mandated to immediately amend or revise again the
Constitution.

However, the signature sheets do not explain the reason for this rush in amending or revising again so
soon the Constitution. The signature sheets do not also explain what specific amendments or revisions
the initiative proponents want the interim Parliament to make, and why there is a need for such further
amendments or revisions. The people are again left in the dark to fathom the nature and effect of the
proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the
people do not even know the nature and effect of the proposed changes.

There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August
2006. The proposed Section 4(3) of the Transitory Provisions states:

75
 Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until
noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim
Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no
counterpart provision for the present members of the House of Representatives even if their term of
office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all
the present members of the House will remain members of the interim Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all
the powers of the President. If the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House
of Representatives to the exclusion of the present Senators.

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who
signed the signature sheets could not have known that their signatures would be used to discriminate
against the Senators. They could not have known that their signatures would be used to limit, after 30
June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of
Representatives.

An initiative that gathers signatures from the people without first showing to the people the full text of
the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people.
That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in
a petition" - meaning that the people must sign on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of
the proposed amendments cannot be hidden from the people under a general or special power of
attorney to unnamed, faceless, and unelected individuals.

The Constitution entrusts to the people the power to directly propose amendments to the Constitution.
This Court trusts the wisdom of the people even if the members of this Court do not personally know the
people who sign the petition. However, this trust emanates from a fundamental assumption: the full
text of the proposed amendment is first shown to the people before they sign the petition, not after
they have signed the petition.

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply
with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly
proposed by the people through initiative upon a petition."

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through
Initiatives

A people's initiative to change the Constitution applies only to an amendment of the Constitution and not
to its revision. In contrast, Congress or a constitutional convention can propose both amendments and
revisions to the Constitution. Article XVII of the Constitution provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS

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 Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members, or

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is
through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional
convention. The third mode is through a people's initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies
only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following
deliberations of the Constitutional Commission:

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I quote
Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal was
suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not extend
to the revision of the entire Constitution, so we removed it from the operation of Section 1 of
the proposed Article on Amendment or Revision. x x x x

xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section
in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in
terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as
another separate section as if it were a self-executing provision?

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which

77
 contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the
Committee.

MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of
initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1

refers to "amendments." Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision."

MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction
between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only
Congress or a constitutional convention may propose revisions to the Constitution. The framers intended,
and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent
and language of the Constitution clearly withhold from the people the power to propose revisions to the
Constitution, the people cannot propose revisions even as they are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v.
Jordan,32 the Supreme Court of California ruled:

The initiative power reserved by the people by amendment to the Constitution x x x applies
only to the proposing and the adopting or rejecting of 'laws and amendments to the
Constitution' and does not purport to extend to a constitutional revision. x x x x It is thus clear
that a revision of the Constitution may be accomplished only through ratification by the people
of a revised constitution proposed by a convention called for that purpose as outlined
hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed
'the measure') now before us is so broad that if such measure became law a substantial revision
of our present state Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is first agreed upon by a constitutional convention,
and the writ sought by petitioner should issue. x x x x (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33

78
 It is well established that when a constitution specifies the manner in which it may be amended
or revised, it can be altered by those who favor amendments, revision, or other change only
through the use of one of the specified means. The constitution itself recognizes that there is a
difference between an amendment and a revision; and it is obvious from an examination of the
measure here in question that it is not an amendment as that term is generally understood and
as it is used in Article IV, Section 1. The document appears to be based in large part on the revision
of the constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961
Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in
the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and
hence failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the plaintiffs
is, nevertheless, a thorough overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the
people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section
2(1); if a new constitution, it can only be proposed at a convention called in the manner provided
in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can
be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor,
even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed
in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34

It is a fundamental principle that a constitution can only be revised or amended in the manner
prescribed by the instrument itself, and that any attempt to revise a constitution in a manner
other than the one provided in the instrument is almost invariably treated as extra-
constitutional and revolutionary. x x x x "While it is universally conceded that the people are
sovereign and that they have power to adopt a constitution and to change their own work at will,
they must, in doing so, act in an orderly manner and according to the settled principles of
constitutional law. And where the people, in adopting a constitution, have prescribed the method
by which the people may alter or amend it, an attempt to change the fundamental law in violation
of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution ― that a people's
initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be
dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

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Courts have long recognized the distinction between an amendment and a revision of a constitution. One
of the earliest cases that recognized the distinction described the fundamental difference in this manner:

[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and
the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the instrument,
shall be of a like permanent and abiding nature. On the other hand, the significance of the term
"amendment" implies such an addition or change within the lines of the original instrument as
will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis
supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects substantial
provisions of the constitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved. Revision generally affects several
provisions of the constitution, while amendment generally affects only the specific provision being
amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like
in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test.
The quantitative test asks whether the proposed change is "so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions affected and does not consider the
degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The
main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision."37 Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental powers of its Branches."38 A change
in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form
of government and the system of check and balances."39

Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles -
Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the
entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government,
from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-
equal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a
Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive
branches is a radical change in the structure of government.

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The abolition alone of the Office of the President as the locus of Executive Power alters the separation of
powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber
of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of
the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-
Parliamentary system, involving the abolition of the Office of the President and the abolition of one
chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the
Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member
of the Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and separable provisions. The guiding
original intention of an amendment is to improve specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress specific portions that may have become obsolete or that
are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a
re-examination of the entire document, or of provisions of the document which have over-all implications
for the entire document, to determine how and to what extent they should be altered. Thus, for instance
a switch from the presidential system to a parliamentary system would be a revision because of its over-
all impact on the entire constitutional structure. So would a switch from a bicameral system to a
unicameral system be because of its effect on other important provisions of the
Constitution.41 (Emphasis supplied)

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was
defective and unauthorized where [the] proposed amendment would x x x affect several other provisions
of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of
the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but provides
for a change in the form of the legislative branch of government, which has been in existence in
the United States Congress and in all of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more revolutionary change. The concept of a House and
a Senate is basic in the American form of government. It would not only radically change the
whole pattern of government in this state and tear apart the whole fabric of the Constitution,
but would even affect the physical facilities necessary to carry on government.

xxxx

We conclude with the observation that if such proposed amendment were adopted by the people
at the General Election and if the Legislature at its next session should fail to submit further
amendments to revise and clarify the numerous inconsistencies and conflicts which would result,
or if after submission of appropriate amendments the people should refuse to adopt them, simple
chaos would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit
Courts-and there could be other examples too numerous to detail. These examples point
unerringly to the answer.

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 The purpose of the long and arduous work of the hundreds of men and women and many sessions
of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and
conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All
of this could disappear very quickly if we were to hold that it could be amended in the manner
proposed in the initiative petition here.43 (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge
the executive and legislative departments. The initiative in Adams did not even touch the executive
department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would
be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present
initiative, no less than 105 provisions of the Constitution would be affected based on the count of
Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative
seeks far more radical changes in the structure of government than the initiative in Adams.

The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of
procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and
proposes changes to the Constitution, substantive changes are called "revisions" because members of the
deliberative body work full-time on the changes. However, the same substantive changes, when
proposed through an initiative, are called "amendments" because the changes are made by ordinary
people who do not make an "occupation, profession, or vocation" out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide for
both "amendment" and "revision" when it speaks of legislators and constitutional delegates,
while the same provisions expressly provide only for "amendment" when it speaks of the people.
It would seem that the apparent distinction is based on the actual experience of the people, that
on one hand the common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or vocation; while on
the other hand, the legislators and constitutional convention delegates are expected to work full-
time on the same matter because that is their occupation, profession or vocation. Thus, the
difference between the words "revision" and "amendment" pertain only to the process or
procedure of coming up with the corrections, for purposes of interpreting the constitutional
provisions.

100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably
be in the substance or extent of the correction. x x x x (Underlining in the original; boldfacing
supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same
proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute
a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the
present initiative constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the proposed changes, the

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changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.

The express intent of the framers and the plain language of the Constitution contradict the Lambino
Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly
stated, courts do not deviate from such categorical intent and language.45 Any theory espousing a
construction contrary to such intent and language deserves scant consideration. More so, if such theory
wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such
a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only
exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change
involving a radical structural change in government does not constitute a revision justly deserves
rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected
this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed
by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the
legislature can propose a revision of the constitution, but it does not affect proposed revisions
initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the
constitution that cannot be enacted through the initiative process. They assert that the distinction
between amendment and revision is determined by reviewing the scope and subject matter of
the proposed enactment, and that revisions are not limited to "a formal overhauling of the
constitution." They argue that this ballot measure proposes far reaching changes outside the lines
of the original instrument, including profound impacts on existing fundamental rights and radical
restructuring of the government's relationship with a defined group of citizens. Plaintiffs assert
that, because the proposed ballot measure "will refashion the most basic principles of Oregon
constitutional law," the trial court correctly held that it violated Article XVII, section 2, and cannot
appear on the ballot without the prior approval of the legislature.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of
the constitution may not be accomplished by initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said:

"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a
means of amending the Oregon Constitution, but it contains no similar sanction for its use as a
means of revising the constitution." x x x x

It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the
constitution which provides the means for constitutional revision and it excludes the idea that an
individual, through the initiative, may place such a measure before the electorate." x x x x

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 Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the
other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in
determining whether there is an amendment or revision. The present initiative is indisputably located at
the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of
the existing separation of powers among the three co-equal departments of government, requiring far-
reaching amendments in several sections and articles of the Constitution.

Where the proposed change applies only to a specific provision of the Constitution without affecting any
other section or article, the change may generally be considered an amendment and not a revision. For
example, a change reducing the voting age from 18 years to 15 years47 is an amendment and not a
revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to
60 percent is an amendment and not a revision.48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an amendment and not a revision.49

The changes in these examples do not entail any modification of sections or articles of the Constitution
other than the specific provision being amended. These changes do not also affect the structure of
government or the system of checks-and-balances among or within the three branches. These three
examples are located at the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a
single word of one sentence of the Constitution may be a revision and not an amendment. For example,
the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the
Constitution radically overhauls the entire structure of government and the fundamental ideological basis
of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how
it affects other provisions, as well as how it affects the structure of government, the carefully crafted
system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution,

a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires
harmonizing not only several provisions, but also the altered principles with those that remain unaltered.
Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional
conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do
not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only
amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI

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 are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they
are inconsistent with the Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis
supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law,
the later law prevails. This rule also applies to construction of constitutions. However, the Lambino
Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating
that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with
a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions
until the earlier one "shall be amended," which requires a future separate constitutional amendment.

Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded
during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory construction so that the later provision automatically
prevails in case of irreconcilable inconsistency. However, it is not as simple as that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not
between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system
of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of
government."

Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes
refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among
the few countries with unicameral parliaments? The proposed changes could not possibly refer to the
traditional and well-known parliamentary forms of government ― the British, French, Spanish, German,
Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people
who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or
New Zealand parliamentary form of government?

This drives home the point that the people's initiative is not meant for revisions of the Constitution but
only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary
system requires harmonizing several provisions in many articles of the Constitution. Revision of the
Constitution through a people's initiative will only result in gross absurdities in the Constitution.

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article
XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution."

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2,
Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution.
There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An
affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court

85
must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the
requirements of the Constitution to implement the initiative clause on amendments to the Constitution.

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the
Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled
doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on
some other grounds.51

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives
to amend the Constitution, this will not change the result here because the present petition violates
Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first
comply with Section 2, Article XVII of the Constitution even before complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an
initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition
x x x as signatories."

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty.
Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B.
Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3
million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the
petition and amended petition filed with the COMELEC did not even comply with the basic requirement
of RA 6735 that the Lambino Group claims as valid.

The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed Section
4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or
revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government.
Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the
initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still
fail.

4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative

In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's
ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v.
COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC.
On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed
to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing
that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325,
promulgated on March 19, 1997, and its Resolution of June 10, 1997.

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5. Conclusion

The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all
the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in
blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution
itself.

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be
tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change
in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political
group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion.
A revolving-door constitution does not augur well for the rule of law in this country.

An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes cast53 −
approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the people's sovereign will. That approval
included the prescribed modes for amending or revising the Constitution.

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can
change our Constitution contrary to the specific modes that the people, in their sovereign capacity,
prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which
means subverting the people's sovereign will and discarding the Constitution. This is one act the Court
cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform
its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the
people.

Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the
specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the
Constitution ― the people's fundamental covenant that provides enduring stability to our society ―
becomes easily susceptible to manipulative changes by political groups gathering signatures through false
promises. Then, the Constitution ceases to be the bedrock of the nation's stability.

The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC,
that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-
Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an
"unqualified support to the agenda" of the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present
initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution,
which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and
protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered
signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To
allow such alteration and desecration is to lose this Court's raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

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SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona,

Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS V.
COMMISSION ON ELECTIONS ET AL.

SEPARATE CONCURRING OPINION

PANGANIBAN, CJ.:

Without the rule of law, there can be no lasting prosperity and certainly no liberty.

Beverley McLachlin 1
Chief Justice of Canada

After a deep reflection on the issues raised and a careful evaluation of the parties' respective arguments
-- both oral and written -- as well as the enlightened and enlightening Opinions submitted by my esteemed
colleagues, I am fully convinced that the present Petition must be dismissed.

I write, however, to show that my present disposition is completely consistent with my previous Opinions
and votes on the two extant Supreme Court cases involving an initiative to change the Constitution.

In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted properly
and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec Resolution
2300 provide more than sufficient

__________________

'SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.'

"With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve
him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not
thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The

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 fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper
use. Indeed, there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly,

the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives

"While R.A. 6735 may not be a perfect law, it was — as the majority openly concedes — intended
by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate
an initiative on the Constitution. I completely agree with the inspired and inspiring opinions of
Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the
Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly
consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs.
Commission on Elections, that "provisions for initiative . . . are (to be) liberally construed to
effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights
granted thereby"; and in Garcia vs. Comelec, that any "effort to trivialize the effectiveness of
people's initiatives ought to be rejected."

"No law can completely and absolutely cover all administrative details. In recognition of this, R.A.
6735 wisely empowered the Commission on Election "to promulgate such rules and regulations
as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec
issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was
promulgated "to govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws," not by the incumbent Commission on Elections but by
one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo

authority to implement, effectuate and realize our people's power to amend the Constitution."

__________________

E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All
of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus
we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort
to give life to a cherished right of our people.

"The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, R.A. 6735.

"I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide more than
sufficient authority to implement, effectuate and realize our people's power to amend the
Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

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 "I am glad the majority decided to heed our plea to lift the temporary restraining order issued by
this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa
from exercising their right of initiative. In fact, I believe that such restraining order as against
private respondents should not have been issued, in the first place. While I agree that the Comelec
should be stopped from using public funds and government resources to help them gather
signatures, I firmly believe that this Court has no power to restrain them from exercising their
right of initiative. The right to propose amendments to the Constitution is really a species of the
right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop
anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent
Voltaire once said, 'I may disagree with what you say, but I will defend to the death your right to
say it.' After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote,
'freedom for the thought that we hate.'

Epilogue

"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All
three are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic
rights of our people to be used as

Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action
(PIRMA) v. Comelec,3 I joined the rest of the members of the Court in ruling "by a unanimous vote, that
no grave abuse of discretion could be attributed to the Comelec in dismissing the petition filed by

__________________

Constitution x x x." While concededly, petitioners in this case were not direct parties in Santiago,
nonetheless the Court's injunction against the Comelec covered ANY petition, not just the Delfin
petition which was the immediate subject of said case. As a dissenter in Santiago, I believed, and
still do, that the majority gravely erred in rendering such a sweeping injunction, but I cannot
fault the Comelec for complying with the ruling even if it, too, disagreed with said
decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of
the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of
discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any
other mode of action would have constituted defiance of the Court and would have been struck
down as grave abuse of discretion and contumacious disregard of this Court's supremacy as the
final arbiter of justiciable controversies.

Second Issue:
Sufficiency of RA 6735

"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the Constitution,
and that whatever administrative details may have been omitted in said law are satisfactorily
provided by Comelec Resolution 2300. The promulgation of Resolution 2300 is sanctioned by
Section 2, Article IX-C of the Constitution, which vests upon the Comelec the power to "enforce
and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,

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 referendum and recall." The Omnibus Election Code likewise empowers the electoral body to
"promulgate rules and regulations implementing the provisions of this Code or other laws which
the Commission is required to enforce and administer x x x." Finally and most relevantly, Section
20 of Ra 6735 specifically authorizes Comelec "to promulgate rules and regulations as may be
necessary to carry out the purposes of this Act."

"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right
time and for the right reason." Let me explain further.

The Right Thing

"A people's initiative is direct democracy in action. It is the right thing that citizens may avail
themselves of to articulate their will. It is a new and treasured feature of the Filipino constitutional
system. Even the majority implicitly conceded its value and worth in our legal firmament when it
implored Congress "not to tarry any longer in complying with the constitutional mandate to
provide for implementation of the right (of initiative) of the people x x x." Hence, in the en
banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26,
1996], this Court unanimously held that "(l)ike elections, initiative and referendum are powerful
and valuable modes of expressing popular

PIRMA therein," since the Commission had "only complied" with the Santiago Decision.

__________________

sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture,
protect and promote their legitimate exercise."

The Right Way

"From the outset, I have already maintained the view that "taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec
Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our
people's power to amend the Constitution." Let me now demonstrate the adequacy of RA 6735
by outlining, in concrete terms, the steps to be taken – the right way – to amend the Constitution
through a people's initiative.

"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition which
shall contain the proposition and the required number of signatories. Under Sec. 5(c) thereof, the
petition shall state the following:

'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x;

c.2 the proposition [in full text];

c.3 the reason or reasons therefor [fully and clearly explained];

c.4 that it is not one of exceptions provided herein;

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 c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition in not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition.'

"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a formal
designation of the duly authorized representatives of the signatories.

"Being a constitutional requirement, the number of signatures becomes a condition precedent to

the filing of the petition, and is jurisdictional. Without such requisite signatures, the Commission
shall motu proprio reject the petition.

"Where the initiators have substantially complied with the above requirements, they may thence
file the petition with the Comelec which is tasked to determine the sufficiency thereof and to
verify the signatures on the basis of the registry list of voters, voters' affidavits and voters'
identification cards. In deciding whether the petition is sufficient, the Comelec shall also
determine if the proposition is proper for an initiative, i.e., if it consists of an amendment, not a
revision, of the Constitution. Any decision of the electoral body may be appealed to the Supreme
Court within thirty (30) days from notice.

I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300
will not ipso

__________________

"Within thirty (30) days from receipt of the petition, and after the determination of its sufficiency,
the Comelec shall publish the same in Filipino and English at least twice in newspapers of general
and local circulation, and set the date of the plebiscite. The conduct of the plebiscite should not
be earlier than sixty (60) days, but not later than ninety (90) days after certification by the Comelec
of the sufficiency of the petition. The proposition, if approved by a majority of the votes cast in
the plebiscite, becomes effective as of the day of the plebiscite.

"From the foregoing, it should be clear that my position upholding the adequacy of RA 6735 and
the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition and
automatically lead to a plebiscite to amend the Constitution. Far from it. Among others, PIRMA
must still satisfactorily hurdle the following searching issues:

1. Does the proposed change – the lifting of the term limits of elective officials -- constitute a mere
amendment and not a revision of the Constitution?

2. Which registry of voters will be used to verify the signatures in the petition? This question is
relevant considering that under RA 8189, the old registry of voters used in the 1995 national
elections was voided after the barangay elections on May 12, 1997, while the new list may be
used starting only in the elections of May 1998.

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 3. Does the clamor for the proposed change in the Constitution really emanate from the people
who signed the petition for initiative? Or it is the beneficiaries of term extension who are in fact
orchestrating such move to advance their own political self-interest?

4. Are the six million signatures genuine and verifiable? Do they really belong to qualified warm
bodies comprising at least 12% of the registered voters nationwide, of which every legislative
district is represented by at least 3% of the registered voters therein?

"I shall expound on the third question in the next section, The Right Reason. Question Nos. 1 and
2 above, while important, are basically legal in character and can be determined by argumentation
and memoranda. However, Question No. 4 involves not only legal issues but gargantuan hurdles
of factual determination. This to my mind is the crucible, the litmus test, of a people's petition for
initiative. If herein petitioners, led by PIRMA, succeed in proving -- not just alleging -- that six
million voters of this country indeed want to amend the Constitution, what power on earth can
stop them? Not this Court, not the Comelec, not even the President or Congress.

facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far
from it." I stressed that PIRMA must show the following, among others:

__________________

"It took only one million people to stage a peaceful revolution at EDSA, and the very rafters and
foundations of the martial law society trembled, quaked and crumbled. On the other hand, PIRMA
and its co-petitioners are claiming that they have gathered six million signatures. If, as claimed by
many, these six million signatures are fraudulent, then let them be exposed and damned for all
history in a signature-verification process conducted under our open system of legal advocacy.

"More than anything else, it is the truth that I, as a member of this Court and as a citizen of this
country, would like to seek: Are these six million signatures real? By insisting on an entirely new
doctrine of statutory inadequacy, the majority effectively suppressed the quest for that truth.

The Right Reason

"As mentioned, the third question that must be answered, even if the adequacy of RA 6735 and
the validity of Comelec Resolution 2300 were upheld by the majority is: Does the clamor for the
proposed change to the Constitution really emanate from the people who signed the petition for
initiative? Or is it the beneficiaries of term extension who are in fact orchestrating such move to
advance their own political self-interests? In other words, is PIRMA's exercise of the right to
initiative being done in accordance with our Constitution and our laws? Is such attempted exercise
legitimate?

"In Garcia vs. Commission on Elections, we described initiative, along with referendum, as the
'ultimate weapon of the people to negate government malfeasance and misfeasance.' In Subic
Bay, we specified that 'initiative is entirely the work of the electorate x x x a process of lawmaking
by the people themselves without the participation and against the wishes of their elected
representatives.' As ponente of Subic Bay, I stand foursquare on this principle: The right to
amend through initiative belongs only to the people – not to the government and its

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 minions. This principle finds clear support from utterances of many constitutional commissioners
like those quoted below:

"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the
National Assembly x x x [and] precisely a fallback position of the people in the event that they are
dissatisfied." -- Commissioner Ople

"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the legislature
is not as responsive to the vital and urgent needs of people." -- Commissioner Gascon

(1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere amendment
and not a revision of the Constitution."

_________________

"[Initiative is an] extraordinary power given to the people [and] reserved for the people [which]
should not be frivolously resorted to." -- Commissioner Romulo

"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our Charter
itself provides them other ways of doing so, namely, by calling a constitutional convention or
constituting Congress into a constituent assembly. These are officialdom's weapons. But initiative
belongs to the people.

"In the present case, are PIRMA and its co-petitioners legitimate people's organizations or are
they merely fronts for incumbents who want to extend their terms? This is a factual question
which, unfortunately, cannot be judicially answered anymore, because the Supreme Court
majority ruled that the law that implements it, RA 6735, is inadequate or insufficient insofar as
initiatives to the Constitutions are concerned. With such ruling, the majority effectively abrogated
a constitutional right of our people. That is why in my Separate Opinion in Santiago, I exclaimed
that such precipitate action "is equivalent to burning the whole house to exterminate the rats,
and to killing the patient to relieve him of pain." I firmly maintain that to defeat PIRMA's effort,
there is no need to "burn" the constitutional right to initiative. If PIRMA's exercise is not
"legitimate," it can be exposed as such in the ways I have discussed – short of abrogating the right
itself. On the other hand, if PIRMA's position is proven to be legitimate – if it hurdles the four
issues I outlined earlier – by all means, we should allow and encourage it. But the majority's theory
of statutory inadequacy has pre-empted – unnecessarily and invalidly, in my view – any judicial
determination of such legitimacy or illegitimacy. It has silenced the quest for truth into the
interstices of the PIRMA petition.

The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be proposed. Section
2 of Article XVII precludes amendments "within five years following [its] ratification x x x nor
oftener than once every five years thereafter." Since its ratification, the 1987 Constitution has
never been amended. Hence, the five-year prohibition is now inoperative and amendments may
theoretically be proposed at any time.

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 "Be that as it may, I believe – given the present circumstances – that there is no more time to lift
term limits to enable incumbents to seek reelection in the May 11, 1998 polls. Between today and
the next national

(2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm bodies
comprising at

__________________

elections, less than eight (8) months remain. Santiago, where the single issue of the sufficiency of
RA 6735 was resolved, took this Court three (3) months, and another two (2) months to decide
the motion for reconsideration. The instant case, where the same issue is also raised by the
petitioners, took two months, not counting a possible motion for reconsideration. These time
spans could not be abbreviated any further, because due process requires that all parties be given
sufficient time to file their pleadings.

"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 – as I believe it
should – and allow the Comelec to act on the PIRMA petition, such eight-month period will not
be enough to tackle the four weighty issues I mentioned earlier, considering that two of them
involve tedious factual questions. The Comelec's decision on any of these issues can still be
elevated to this Court for review, and reconsiderations on our decisions on each of those issues
may again be sought.

"Comelec's herculean task alone of verifying each of the six million signatures is enormously time-
consuming, considering that any person may question the authenticity of each and every
signature, initially before the election registrar, then before the Comelec on appeal and finally,
before this Court in a separate proceeding. Moreover, the plebiscite itself – assuming such stage
can be reached – may be scheduled only after sixty (60) but not more than ninety (90) days, from
the time the Comelec and this Court, on appeal, finally declare the petition to be sufficient.

"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or coalitions
may start selecting their official candidates for President, Vice President and Senators on
November 27, 1997; the period for filing certificates of candidacy is from January 11 to February
9, 1998; the election period and campaign for national officials start on February 10, 1998, while
the campaign period for other elective officials, on March 17, 1998. This means, by the time
PIRMA's proposition is ready – if ever – for submission directly to the voters at large, it will have
been overcome by the elections. Time will simply run out on PIRMA, if the intention is to lift term
limits in time for the 1998 elections.

"That term limits may no longer be lifted prior to the 1998 elections via a people's initiative does
not detract one whit from (1) my firm conviction that RA 6735 is sufficient and adequate to
implement this constitutional right and, more important, (2) my faith in the power of the people
to initiate changes in local and national laws and the Constitution. In fact, I think the Court can
deliberate on these two items even more serenely and wisely now that the debates will be free
from the din and distraction of the 1998 elections. After all, jurisprudence is not merely for the
here and now but, more so, for the hereafter and the morrow. Let me therefore stress, by way of
epilogue, my unbending credo in favor of our people's right to initiative.

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least 12% of the registered voters nationwide, of which every legislative district is represented by at least
3% of the registered voters therein."

__________________

Epilogue

"I believe in democracy – in our people's natural right to determine our own destiny.

"I believe in the process of initiative as a democratic method of enabling our people to express
their will and chart their history. Initiative is an alternative to bloody revolution, internal chaos
and civil strife. It is an inherent right of the people – as basic as the right to elect, the right to self-
determination and the right to individual liberties. I believe that Filipinos have the ability and the
capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose
what is best for themselves and their posterity.

"Such beliefs, however, should not be equated with a desire to perpetuate a particular official or
group of officials in power. Far from it. Such perpetuation is anathema to democracy. My firm
conviction that there is an adequate law implementing the constitutional right of initiative does
not ipso facto result in the victory of the PIRMA petition or of any proposed constitutional change.
There are, after all, sufficient safeguards to guarantee the proper use of such constitutional right
and to forestall its misuse and abuse. First, initiative cannot be used to revise the Constitution,
only to amend it. Second, the petitioners' signatures must be validated against an existing list of
voters and/or voters' identification cards. Third, initiative is a reverse power of and by the people,
not of incumbent officials and their machinators. Fourth and most important of all, the signatures
must be verified as real and genuine; not concocted, fictitious or fabricated. The only legal way to
do this is to enable the Commission on Elections to conduct a nationwide verification process as
mandated by the Constitution and the law. Such verification, it bears stressing, is subject to review
by this Court.

"There were, by the most generous estimate, only a million people who gathered at EDSA in 1986,
and yet they changed the history of our country. PIRMA claims six times that number, not just
from the National Capital Region but from all over the country. Is this claim through the invention
of its novel theory of statutory insufficiency, the Court's majority has stifled the only legal method
of determining whether PIRMA is real or not, whether there is indeed a popular clamor to lift term
limits of elected officials, and whether six million voters want to initiate amendments to their
most basic law. In suppressing a judicial answer to such questions, the Court may have unwittingly
yielded to PIRMA the benefit of the legal presumption of legality and regularity. In its misplaced
zeal to exterminate the rats, it burned down the whole house. It unceremoniously divested the
people of a basic constitutional right.

In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at the
right time and for the right reason."

In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested against
them, the present Petition of Raul Lambino and Erico Aumentado must be DISMISSED. Unfortunately,
the right thing is being rushed in the wrong way and for the wrong reasons. Let me explain.

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No Grave Abuse

of Discretion by Comelec

As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition. After all,
the Commission merely followed the holding in Santiago permanently

____________________

"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This mission
is undertaken not only to resolve the vagaries of present events but also to build the pathways of
tomorrow. The sum total of the entire process of adversarial litigation is the verity of facts and
the application of law thereto. By the majority cop-out in this mission of discovery, our country
and our people have been deprived not only of a basic constitutional right, as earlier noted, but
also of the judicial opportunity to verify the truth."

enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system."

Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.4 Neither can whim,
caprice, arbitrariness or personal bias be attributed to the Commission.5 Quite the contrary, it prudently
followed this Court's jurisprudence in Santiago and PIRMA. Even assuming arguendo that Comelec erred
in ruling on a very difficult and unsettled question of law, this Court still cannot attribute grave abuse of
discretion to the poll body with respect to that action.6

The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The differences
pointed out by Justice Reynato S. Puno are, with due respect, superficial. It is argued that, unlike the
present Lambino Petition, PIRMA did not contain verified signatures. These are distinctions that do not
make a difference. Precisely, Justice Puno is urging a remand, because the verification issue is
"contentious" and remains unproven by petitioners. Clearly, both the PIRMA and the Lambino Petitions
contain unverified signatures. Therefore, they both deserve the same treatment: DISMISSAL.

Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the
Commission had "only complied" with this Court's Decision in Santiago, the same reason given by Comelec
in this case. The Separate Opinions in PIRMA gave no other reason. No one argued, even remotely, that
the PIRMA Petition should have been dismissed because the signatures were unverified.

To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of
signatures becomes a condition precedent to the filing of the petition, and is jurisdictional.7 Without those
signatures, the Comelec shall motu proprio reject the petition."

So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the exercise
of the right are substantially changed, the Comelec cannot be faulted for acting in accord with this
Court's pronouncements. Respondent Commission has no discretion, under any guise, to refuse
enforcement of any final decision of this Court.8 The refusal of the poll body to act on the Lambino
Petition was its only recourse. Any other mode of action would appear not only presumptuous, but also

97
contemptuous. It would have constituted defiance of the Court and would have surely been struck down
as grave abuse of discretion and contumacious disregard of the supremacy of this Court as the final arbiter
of justiciable controversies.

Even assuming further that this Court rules, as I believe it should (for the reasons given in my Opinions in
Santiago and PIRMA), that Republic Act 6735 is indeed sufficient to implement an initiative to amend the
Constitution, still, no grave abuse of discretion can be attributed to the Comelec for merely following
prevailing jurisprudence extant at the time it rendered its ruling in question.

Only Amendments,

Not Revisions

I reiterate that only amendments, not revisions, may be the proper subject of an initiative to change the
Constitution. This principle is crystal clear from even a layperson's reading of the basic law.9

I submit that changing the system of government from presidential to parliamentary and the form of the
legislature from bicameral to unicameral contemplates an overhaul of the structure of government. The
ponencia has amply demonstrated that the merger of the legislative and the executive branches under a
unicameral-parliamentary system, "[b]y any legal test and under any jurisdiction," will "radically alter the
framework of government as set forth in the Constitution." Indeed, the proposed changes have an overall
implication on the entire Constitution; they effectively rewrite its most important and basic provisions.
The prolixity and complexity of the changes cannot be categorized, even by semantic generosity, as
"amendments."

In addition, may I say that of the three modes of changing the Constitution, revisions (or amendments)
may be proposed only through the first two: by Congress or by a constitutional convention. Under the
third mode -- people's initiative -- only amendments are allowed. Many of the justices' Opinions have
cited the historical, philosophical and jurisprudential bases of their respective positions. I will not add to
the woes of the reader by reiterating them here.

Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found in
the Constitution itself: a revision may be done only when the proposed change can be drafted, defined,
articulated, discussed and agreed upon after a mature and democratic debate in a deliberative body
like Congress or a Convention. The changes proposed must necessarily be scrutinized, as their adoption
or non-adoption must result from an informed judgment.

Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to spend
many months of purposeful discussions, democratic debates and rounds of voting before they could agree
on the wordings covering the philosophy, the underlying principles, and the structure of government of
our Republic.

Verily, even bills creating or changing the administrative structure of local governments take several
weeks or even months of drafting, reading, and debating before Congress can approve them. How much
more when it comes to constitutional changes?

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A change in the form of government of our country from presidential-bicameral to parliamentary-
unicameral is monumental. Even the initiative proponents admit this fact. So, why should a revision be
rammed down our people's throats without the benefit of intelligent discussion in a deliberative
assembly?

Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly prohibiting
petitions for initiative from "embracing more than one subject matter."10 The present initiative covers at
least two subjects: (1) the shift from a presidential to a parliamentary form of government; and (2) the
change from a bicameral to a unicameral legislature.11 Thus, even under Republic Act 6735 -- the law that
Justice Puno and I hold to be sufficient and valid -- the Lambino Petition deserves dismissal.

12 Percent and 3 Percent Thresholds

Not Proven by Petitioners

The litmus test of a people's petition for initiative is its ability to muster the constitutional requirement
that it be supported by at least 12 percent of the registered voters nationwide, of which at least 3 percent
of the registered voters in every legislative district must be represented. As pointed out by Intervenors
One Voice, Inc., et al., however, records show that there was a failure to meet the minimum percentages
required.12

Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve
"contentious facts," which have not been proven by the Lambino Petition. Thus, he is urging a remand to
the Comelec.

But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates the
said requisites of an initiative petition. In other words, a petition that does not show the required
percentages is fatally defective and must be dismissed, as the Delfin Petition was, in Santiago.

Furthermore, as the ponencia had discussed extensively, the present Petition is void and unconstitutional.
It points out that the Petition dismally fails to comply with the constitutional requirement that an initiative
must be directly proposed by the people. Specifically, the ponencia has amply established that petitioners
were unable to show that the Lambino Petition contained, or incorporated by attachment, the full text of
the proposed changes.

So, too, a remand is futile. Even if the required percentages are proven before the Commission, the
Petition must still be dismissed for proposing a revision, not an amendment, in gross violation of the
Constitution. At the very least, it proposes more than one subject, in violation of Republic Act 6735.

Summation

Petitioners plead with this Court to hear the voice of the people because, in the words of Justice Puno
who supports them, the "people's voice is sovereign in a democracy."

I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that "initiative is
a democratic method of enabling our people to express their will and chart their history. x x x. I believe
that Filipinos have the ability and the capacity to rise above themselves, to use this right of initiative wisely
and maturely, and to choose what is best for themselves and their posterity."

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This belief will not, however, automatically and blindly result in an initiative to change the Constitution,
because the present Petition violates the following:

· The Constitution (specifically Article XVII, which allows only amendments, not revisions, and requires
definite percentages of verified signatures)

· The law (specifically, Republic Act 6735, which prohibits petitions containing more than one subject)

· Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under consideration on
the ground that, by following the Santiago ruling, the Comelec had not gravely abused its discretion).

I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is
a cop-out, a hand-washing already discredited 2000 years ago. Instead of finger-pointing, I believe we
must confront the issues head on, because the people expect no less from this august and venerable
institution of supreme justice.

Epilogue

At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall, is a
treasured feature of the Filipino constitutional system. It was born out of our world-admired and often-
imitated People Power, but its misuse and abuse must be resolutely rejected. Democracy must be
cherished, but mob rule vanquished.

The Constitution is a sacred social compact, forged between the government and the people, between
each individual and the rest of the citizenry. Through it, the people have solemnly expressed their will that
all of them shall be governed by laws, and their rights limited by agreed-upon covenants to promote the
common good. If we are to uphold the Rule of Law and reject the rule of the mob, we must faithfully
abide by the processes the Constitution has ordained in order to bring about a peaceful, just and
humane society. Assuming arguendo that six million people allegedly gave their assent to the proposed
changes in the Constitution, they are nevertheless still bound by the social covenant -- the present
Constitution -- which was ratified by a far greater majority almost twenty years ago.14 I do not denigrate
the majesty of the sovereign will; rather, I elevate our society to the loftiest perch, because our
government must remain as one of laws and not of men.

Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the
Constitution. Being the protectors of the fundamental law as the highest expression of the sovereign will,
they must subject to the strictest scrutiny any attempt to change it, lest it be trivialized and degraded by
the assaults of the mob and of ill-conceived designs. The Court must single-mindedly defend the
Constitution from bogus efforts falsely attributed to the sovereign people.

The judiciary may be the weakest branch of government. Nonetheless, when ranged against incessant
voices from the more powerful branches of government, it should never cower in submission. On the
other hand, I daresay that the same weakness of the Court becomes its strength when it speaks
independently through decisions that rightfully uphold the supremacy of the Constitution and the Rule
of Law. The strength of the judiciary lies not in its lack of brute power, but in its moral courage to perform
its constitutional duty at all times against all odds. Its might is in its being right.15

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During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged carrots
offered and sticks drawn by those interested in the outcome of this case.16 There being no judicial proof
of these allegations, I shall not comment on them for the nonce, except to quote the Good Book, which
says, "There is nothing hidden that will not be revealed, and nothing secret that will not be known and
come to light."17

Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of its
members shall be judged by posterity. Ten years, fifty years, a hundred years -- or even a thousand years
-- from now, what the Court did here, and how each justice opined and voted, will still be talked about,
either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the abomination of Dred
Scott, and the loathing of Javellana still linger and haunt to this day.

Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation and
the world for its independence, integrity, industry and intelligence.

WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN
Chief Justice

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO,
and John Doe and Peter Doe, Respondents.

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

SEPARATE OPINION

YNARES-SANTIAGO, J.:

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I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling
in Santiago v. COMELEC1 is not a binding precedent. However, it is my position that even if Santiago were
reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the purpose of people's
initiative to amend the Constitution, the petition for initiative in this case must nonetheless be dismissed.

There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly invoke
the said law to justify their alleged people's initiative. Section 5(b) of R.A. 6735 requires that "[a] petition
for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number
of registered voters as signatories, of which every legislative district must be represented by at least
three per centum (3%) of the registered voters therein." On the other hand, Section 5(c)2 of the same law
requires that the petition should state, among others, the proposition3 or the "contents or text of the
proposed law sought to be enacted, approved or rejected, amended or repealed." If we were to apply
Section 5(c) to an initiative to amend the Constitution, as petitioners submit, the petition for initiative
signed by the required number of voters should incorporate therein a text of the proposed changes to the
Constitution. However, such requirement was not followed in the case at bar.

During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of the
text of the proposed changes to the Constitution. According to him, these were subsequently distributed
to their agents all over the country, for attachment to the sheets of paper on which the signatures were
to be affixed. Upon being asked, however, if he in fact knew whether the text was actually attached to the
signature sheets which were distributed for signing, he said that he merely assumed that they were. In
other words, he could not tell the Court for certain whether their representatives complied with this
requirement.

The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably establish
that the full text of the proposed changes was not attached to the signature sheets. All that the signature
sheets contained was the general proposition and abstract, which falls short of the full text requirement
of R.A. 6735.

The necessity of setting forth the text of the proposed constitutional changes in the petition for initiative
to be signed by the people cannot be seriously disputed. To begin with, Article XVII, Section 2 of the
Constitution unequivocally states that "[a]mendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein." Evidently, for the people to propose amendments to the
Constitution, they must, in the first instance, know exactly what they are proposing. It is not enough that
they merely possess a general idea of the proposed changes, as the Constitution speaks of a "direct"
proposal by the people.

Although the framers of the Constitution left the matter of implementing the constitutional right of
initiative to Congress, it might be noted that they themselves reasonably assumed that the draft of the
proposed constitutional amendments would be shown to the people during the process of signature
gathering. Thus –

MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at least
10 percent of the registered voters." How will we determine that 10 percent has been achieved?
How will the voters manifest their desire, is it by signature?

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 MR. SUAREZ. Yes, by signatures.

MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready to be
shown to the people when they are asked to sign?

MR. SUAREZ. That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they
sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.4

It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the proposed
changes must necessarily be stated in or attached to the initiative petition. The signatories to the petition
must be given an opportunity to fully comprehend the meaning and effect of the proposed changes to
enable them to make a free, intelligent and well-informed choice on the matter.

Needless to say, the requirement of setting forth the complete text of the proposed changes in the
petition for initiative is a safeguard against fraud and deception. If the whole text of the proposed changes
is contained in or attached to the petition, intercalations and riders may be duly avoided. Only then can
we be assured that the proposed changes are truly of the people and that the signatories have been fully
apprised of its implications.

If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and
referendum process, such provision must be viewed as an indispensable requirement and failure to
substantially comply therewith is fatal.5 The failure of petitioners in this case to comply with the full text
requirement resultantly rendered their petition for initiative fatally defective.

The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under
Section 10(a) of R.A. 6735:

SEC. 10. Prohibited Measures.— The following cannot be the subject of an initiative or referendum
petition:

(a) No petition embracing more than one subject shall be submitted to the electorate; x x x

The one subject rule, as relating to an initiative to amend the Constitution, has the same object and
purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To
elaborate, the one subject-one bill rule was designed to do away with the practice of inserting two or
more unrelated provisions in one bill, so that those favoring one provision would be compelled to adopt
the others. By this process of log-rolling, the adoption of both provisions could be accomplished and
ensured, when neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to prevent surprise and
fraud on the electorate. It is meant to safeguard the integrity of the initiative process by ensuring that no

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unrelated riders are concealed within the terms of the proposed amendment. This in turn guarantees that
the signatories are fully aware of the nature, scope and purpose of the proposed amendment.

Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one
subject matter, that is – the shift from presidential to a parliamentary system of government. According
to petitioners, all of the other proposed changes are merely incidental to this main proposal and are
reasonably germane and necessary thereto.8 An examination of the text of the proposed changes reveals,
however, that this is not the case.

The proposed changes to the Constitution cover other subjects that are beyond the main proposal
espoused by the petitioners. Apart from a shift from the presidential to a parliamentary form of
government, the proposed changes include the abolition of one House of Congress,9 and the convening
of a constituent assembly to propose additional amendments to the Constitution.10 Also included within
its terms is an omnibus declaration that those constitutional provisions under Articles VI and VII, which
are inconsistent with the unicameral-parliamentary form of government, shall be deemed amended to
conform thereto.

It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of
government, it actually seeks to affect other subjects that are not reasonably germane to the
constitutional alteration that is purportedly sought. For one, a shift to a parliamentary system of
government does not necessarily result in the adoption of a unicameral legislature. A parliamentary
system can exist in many different "hybrid" forms of government, which may or may not embrace
unicameralism.11 In other words, the shift from presidential to parliamentary structure and from a
bicameral to a unicameral legislature is neither the cause nor effect of the other.

I also fail to see the relation of convening a constituent assembly with the proposed change in our system
of government. As a subject matter, the convening of a constituent assembly to amend the Constitution
presents a range of issues that is far removed from the subject of a shift in government. Besides, the
constituent assembly is supposed to convene and propose amendments to the Constitution after the
proposed change in the system of government has already taken place. This only goes to show that the
convening of the constituent assembly is not necessary to effectuate a change to a parliamentary system
of government.

The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a
unicameral-parliamentary system of government shall be deemed amended is equally bothersome. The
statement does not specify what these inconsistencies and amendments may be, such that everyone is
left to guess the provisions that could eventually be affected by the proposed changes. The subject and
scope of these automatic amendments cannot even be spelled out with certainty. There is thus no
reasonable measure of its impact on the other constitutional provisions.

The foregoing proposed changes cannot be the subject of a people's initiative under Section 2, Article XVII
of the Constitution. Taken together, the proposed changes indicate that the intendment is not simply to
effect substantial amendments to the Constitution, but a revision thereof. The distinction between an
amendment and revision was explained by Dean Vicente G. Sinco, as follows:

"Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the greater

104
 portion of it, or perhaps only some of its important provisions. But whatever results the revision
may produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether
the whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The intention rather is to improve specific
parts of the existing constitution or to add to it provisions deemed essential on account of
changed conditions or to suppressportions of it that seem obsolete, or dangerous, or misleading
in their effect."12

The foregoing traditional exposition of the difference between amendment and revision has indeed
guided us throughout our constitutional history. However, the distinction between the two terms is not,
to my mind, as significant in the context of our past constitutions, as it should be now under the 1987
Constitution. The reason for this is apparent. Under our past constitutions, it was Congress alone, acting
either as a constituent assembly or by calling out a constitutional convention, that exercised authority to
either amend or revise the Constitution through the procedures therein described. Although the
distinction between the two terms was theoretically recognized under both the 1935 and 1973
Constitutions, the need to highlight the difference was not as material because it was only Congress that
could effect constitutional changes by choosing between the two modalities.

However, it is different now under the 1987 Constitution. Apart from providing for the two modes of
either Congress constituting itself as a constituent assembly or calling out for a constitutional convention,
a third mode was introduced for proposing changes to the Constitution. This mode refers to the people's
right to propose amendments to the fundamental law through the filing of a petition for initiative.

Otherwise stated, our experience of what constitutes amendment or revision under the past constitutions
is not determinative of what the two terms mean now, as related to the exercise of the right to propose
either amendments or revision. The changes introduced to both the Constitutions of 1935 and 1973 could
have indeed been deemed an amendment or revision, but the authority for effecting either would never
have been questioned since the same belonged solely to Congress. In contrast, the 1987 Constitution
clearly limits the right of the people to directly propose constitutional changes to amendments only. We
must consequently not be swayed by examples of constitutional changes effected prior to the present
fundamental law, in determining whether such changes are revisory or amendatory in nature.

In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio in Javellana v.
Executive Secretary13 related to the procedure to be followed in ratifying a completely new charter
proposed by a constitutional convention. The authority or right of the constitutional convention itself to
effect such a revision was not put in issue in that case. As far as determining what constitutes
"amendments" for the purpose of a people's initiative, therefore, we have neither relevant precedent nor
prior experience. We must thus confine ourselves to Dean Sinco's basic articulation of the two terms.

It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the
Constitution. The part need not be a substantial part as a change may qualify as a revision even if it only
involves some of the important provisions. For as long as the intention and plan to be carried out
contemplate a consideration of all the provisions of the Constitution "to determine which should be

105
altered or suppressed, or whether the whole document should be replaced with an entirely new one,"
the proposed change may be deemed a revision and not merely an amendment.

Thus, it is not by the sheer number alone of the proposed changes that the same may be considered as
either an amendment or revision. In so determining, another overriding factor is the "original intention
and plan authorized to be carried out" by the proposed changes. If the same relates to a re-examination
of the entire document to see which provisions remain relevant or if it has far-reaching effects on the
entire document, then the same constitutes a revision and not a mere amendment of the Constitution.

From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is
necessary in assessing what may be considered as an amendment or revision. It is not enough that we
focus simply on the physical scope of the proposed changes, but also consider what it means in relation
to the entire document. No clear demarcation line can be drawn to distinguish the two terms and each
circumstance must be judged on the basis of its own peculiar conditions. The determination lies in
assessing the impact that the proposed changes may have on the entire instrument, and not simply on an
arithmetical appraisal of the specific provisions which it seeks to affect.

In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the combination of
quantitative and qualitative assessment of proposed constitutional changes, in order to determine
whether the same is revisory or merely amendatory. In that case, the McFadden court found the proposed
changes extensive since at least 15 of the 25 articles contained in the California Constitution would either
be repealed in their entirety or substantially altered, and four new topics would be introduced. However,
it went on to consider the qualitative effects that the proposed initiative measure would have on
California's basic plan of government. It observed that the proposal would alter the checks and balances
inherent in such plan, by delegating far-reaching and mixed powers to an independent commission
created under the proposed measure. Consequently, the proposal in McFadden was not only deemed as
broad and numerous in physical scope, but was also held as having a substantive effect on the
fundamental governmental plan of the State of California.

The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court
in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in the
United States Supreme Court all judicial interpretative powers of the California courts over fundamental
criminal defense rights in that state. It was observed that although quantitatively, the proposition did "not
seem so extensive as to change directly the substantial entirety of the Constitution by the deletion or
alteration of numerous existing provisions," the same, nonetheless, "would substantially alter the
substance and integrity of the state Constitution as a document of independent force and effect."
Quoting Amador Valley Joint Union High School District v. State Board of Equalization,16 the Raven court
said:

". . . apart from a measure effecting widespread deletions, additions and amendments involving
many constitutional articles, 'even a relatively simple enactment may accomplish such far
reaching changes in the nature of our basic governmental plan as to amount to a revision
also…[A]n enactment which purported to vest all judicial power in the Legislature would amount
to a revision without regard either to the length or complexity of the measure or the number of
existing articles or sections affected by such change.'" (Underscoring supplied and citations
omitted)

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Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative and
qualitative effects of a proposed measure on its constitutional scheme. Substantial changes in either
respect could amount to a revision.17

I am persuaded that we can approach the present issue in the same manner. The experience of the courts
in California is not far removed from the standards expounded on by Dean Sinco when he set out to
differentiate between amendment and revision. It is actually consistent, not only with our traditional
concept of the two terms, but also with the mindset of our constitutional framers when they referred to
the disquisition of Justice Antonio in Javellana.18 We must thus consider whether the proposed changes
in this case affect our Constitution in both its substantial physical entirety and in its basic plan of
government.

The question posed is: do the proposed changes, regardless of whether these are simple or substantial,
amount to a revision as to be excluded from the people's right to directly propose amendments to the
fundamental law?

As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the
proposed changes. These tests are consistent with Dean Sinco's traditional concept of amendment and
revision when he explains that, quantitatively, revision "may result in the rewriting either of the whole
constitution, or the greater part of it, or perhaps only some of its provisions." In any case, he continues,
"the factor that characterizes it as an act of revision is the original intention and plan authorized to be
carried out." Unmistakably, the latter statement refers to the qualitative effect of the proposed changes.

It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case will
affect only two (2) out of the eighteen (18) articles of the 1987 Constitution, namely, Article VI (Legislative
Department) and Article VII (Executive Department), as well as provisions that will ensure the smooth
transition from a presidential-bicameral system to a parliamentary-unicameral structure of government.
The quantitative effect of the proposed changes is neither broad nor extensive and will not affect the
substantial entirety of the 1987 Constitution.

However, it is my opinion that the proposed changes will have serious qualitative consequences on the
Constitution. The initiative petition, if successful, will undoubtedly alter, not only our basic governmental
plan, but also redefine our rights as citizens in relation to government. The proposed changes will set into
motion a ripple effect that will strike at the very foundation of our basic constitutional plan. It is therefore
an impermissible constitutional revision that may not be effected through a people's initiative.

Petitioners' main proposal pertains to the shifting of our form of government from the presidential to the
parliamentary system. An examination of their proposal reveals that there will be a fusion of the executive
and legislative departments into one parliament that will be elected on the basis of proportional
representation. No term limits are set for the members of parliament except for those elected under the
party-list system whose terms and number shall be provided by law. There will be a President who shall
be the head of state, but the head of government is the Prime Minister. The latter and his cabinet shall be
elected from among the members of parliament and shall be responsible to parliament for the program
of government.

The preceding proposal indicates that, under the proposed system, the executive and legislature shall be
one and the same, such that parliament will be the paramount governing institution. What this implies is

107
that there will be no separation between the law-making and enforcement powers of the state, that are
traditionally delineated between the executive and legislature in a presidential form of government.
Necessarily, the checks and balances inherent in the fundamental plan of our U.S.-style presidential
system will be eliminated. The workings of government shall instead be controlled by the internal political
dynamics prevailing in the parliament.

Our present governmental system is built on the separation of powers among the three branches of
government. The legislature is generally limited to the enactment of laws, the executive to the
enforcement of laws and the judiciary to the application of laws. This separation is intended to prevent a
concentration of authority in one person or group that might lead to an irreversible error or abuse in its
exercise to the detriment of our republican institutions. In the words of Justice Laurel, the doctrine of
separation of powers is intended to secure action, to forestall overaction, to prevent despotism and obtain
efficiency.19

In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the
legislative and executive powers of the state, since both the Prime Minister and the members of his
cabinet are drawn from parliament. There are no effective limits to what the Prime Minister and
parliament can do, except the will of the parliamentary majority. This goes against the central principle of
our present constitutional scheme that distributes the powers of government and provides for
counteraction among the three branches. Although both the presidential and parliamentary systems are
theoretically consistent with constitutional democracy, the underlying tenets and resulting governmental
framework are nonetheless radically different.

Consequently, the shift from presidential to parliamentary form of government cannot be regarded as
anything but a drastic change. It will require a total overhaul of our governmental structure and involve a
re-orientation in the cardinal doctrines that govern our constitutional set-up. As explained by Fr. Joaquin
Bernas, S.J., a switch from the presidential system to a parliamentary system would be a revision because
of its over-all impact on the entire constitutional structure.20 It cannot, by any standard, be deemed as a
mere constitutional amendment.

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention
and plan contemplates a re-examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine how and to what extent
they should be altered.21 (Underscoring supplied)

The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the
proponents to effect even more far-reaching changes in our fundamental law. If the original intent were
to simply shift the form of government to the parliamentary system, then there would have been no need
for the calling out of a constituent assembly to propose further amendments to the Constitution. It should
be noted that, once convened, a constituent assembly can do away and replace any constitutional
provision which may not even have a bearing on the shift to a parliamentary system of government. The
inclusion of such a proposal reveals the proponents' plan to consider all provisions of the constitution,
either to determine which of its provisions should be altered or suppressed or whether the whole
document should be replaced with an entirely new one.

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Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative. The
proposal to convene a constituent assembly, which by its terms is mandatory, will practically jeopardize
the future of the entire Constitution and place it on shaky grounds. The plan of the proponents, as
reflected in their proposed changes, goes beyond the shifting of government from the presidential to the
parliamentary system. Indeed, it could even extend to the "fundamental nature of our state as a
democratic and republican state."

To say that the proposed changes will affect only the constitution of government is therefore a fallacy. To
repeat, the combined effect of the proposed changes to Articles VI and VII and those pertaining to the
Transitory Provisions under Article XVIII indubitably establish the intent and plan of the proponents to
possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid reason exists for
authorizing further amendments or revisions to the Constitution if the intention of the proposed changes
is truly what it purports to be.

There is no question here that only amendments to the Constitution may be undertaken through a
people's initiative and not a revision, as textually reflected in the Constitution itself. This conclusion is
inevitable especially from a comparative examination of Section 2 in relation to Sections 1 and 4 of Article
XVII, which state:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

xxxx

SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast
in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission of Elections of the sufficiency of the petition. (Underscoring
supplied)

It is clear that the right of the people to directly propose changes to the Constitution is limited to
amendments and does not include a revision thereof. Otherwise, it would have been unnecessary to
provide for Section 2 to distinguish its scope from the rights vested in Congress under Section 1. The latter

109
lucidly states that Congress may propose both amendments and a revision of the Constitution by either
convening a constituent assembly or calling for a constitutional convention. Section 2, on the other hand,
textually commits to the people the right to propose only amendments by direct action.

To hold, therefore, that Section 2 allows substantial amendments amounting to revision obliterates the
clear distinction in scope between Sections 1 and 2. The intention, as may be seen from a cursory perusal
of the above provisions, is to provide differing fields of application for the three modes of effecting
changes to the Constitution. We need not even delve into the intent of the constitutional framers to see
that the distinction in scope is definitely marked. We should thus apply these provisions with a discerning
regard for this distinction. Again, McFadden22 is instructive:

". . . The differentiation required is not merely between two words; more accurately it is between
two procedures and between their respective fields of application. Each procedure, if we follow
elementary principles of statutory construction, must be understood to have a substantial field of
application, not to be x x x a mere alternative procedure in the same field. Each of the two words,
then, must be understood to denote, respectively, not only a procedure but also a field of
application appropriate to its procedure. The people of this state have spoken; they made it clear
when they adopted article XVIII and made amendment relatively simple but provided the
formidable bulwark of a constitutional convention as a protection against improvident or hasty
(or any other) revision, that they understood that there was a real difference between
amendment and revision. We find nothing whatsoever in the language of the initiative
amendment of 1911 (art. IV, § 1) to effect a breaking down of that difference. On the contrary,
the distinction appears to be x x x scrupulously preserved by the express declaration in the
amendment x x x that the power to propose and vote on "amendments to the Constitution" is
reserved directly to the people in initiative proceedings, while leaving unmentioned the power
and the procedure relative to constitutional revision, which revisional power and procedure, it
will be remembered, had already been specifically treated in section 2 of article XVIII. Intervenors'
contention--that any change less than a total one is but amendatory--would reduce to the rubble
of absurdity the bulwark so carefully erected and preserved. Each situation involving the question
of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon
its own facts."

Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the
provisions on amendments and revisions under Article XVII. The voice and will of our people cannot be
any clearer when they limited people's initiative to mere amendments of the fundamental law and
excluded revisions in its scope. In this regard, the task of the Court is to give effect to the people's voice,
as expressed unequivocally through the Constitution.

Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines the
constitutional meaning of "sovereignty of the people." It is through these provisions that the sovereign
people have allowed the expression of their sovereign will and have canalized their powers which would
otherwise be plenary. By approving these provisions, the sovereign people have decided to limit
themselves and future generations in the exercise of their sovereign power.23 They are thus bound by the
constitution and are powerless, whatever their numbers, to change or thwart its mandates, except
through the means prescribed by the Constitution itself.24

It is thus misplaced to argue that the people may propose revisions to the Constitution through people's
initiative because their representatives, whose power is merely delegated, may do so. While Section 1 of

110
Article XVII may be considered as a provision delegating the sovereign powers of amendment and
revision to Congress, Section 2, in contrast, is a self-limitation on that sovereign power. In the words of
Cooley:

x x x Although by their constitutions the people have delegated the exercise of sovereign powers
to the several departments, they have not thereby divested themselves of the sovereignty. They
retain in their own hands, so far as they have thought it needful to do so, a power to control the
governments they create, and the three departments are responsible to and subject to be
ordered, directed, changed or abolished by them. But this control and direction must be exercised
in the legitimate mode previously agreed upon. The voice of the people, acting in their sovereign
capacity, can be of legal force only when expressed at the times and under the conditions which
they themselves have prescribed and pointed out by the Constitution, or which, consistently with
the Constitution, have been prescribed and pointed out for them by statute; and if by any portion
of the people, however large, an attempt should be made to interfere with the regular working
of the agencies of government at any other time or in any other mode than as allowed by existing
law, either constitutional or statutory, it would be revolutionary in character, and must be resisted
and repressed by the officers who, for the time being, represent legitimate
government.25 (Underscoring supplied)

Consequently, there is here no case of "the spring rising above its source." Nor is it one where the people's
sovereign power has been relegated to a lesser plane than that of Congress. In choosing to exercise self-
limitation, there is no absence or lack of even a fraction of the sovereign power of the people since self-
limitation itself is an expression of that sovereign power. The people have chosen to delegate and limit
their sovereign power by virtue of the Constitution and are bound by the parameters that they themselves
have ordained. Otherwise, if the people choose to defy their self-imposed constitutional restraints, we
will be faced with a revolutionary situation.26

It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we affirm,
however, that aspect of direct democracy, we should not forget that, first and foremost, we are
a constitutional democracy. To uphold direct democracy at the expense of the fundamental law is to
sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the powers of
the Court who, by sovereign mandate, is the guardian and keeper of the Constitution.

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.

CONSUELO YNARES-SANTIAGO
Associate Justice

____________________

EN BANC

G.R. NO. 174153

RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED

VOTERS, petitioners,
vs.

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THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND VICTORINO F.
BALAIS, petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, MIGRANTE,
GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN
JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-BARAQUEL, oppositors-
intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO,
MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND
AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. OSMENA III, JAMBY
A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M.
LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L. SALVADOR AND
RANDALL C. TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR., oppositor-
intervenor;

G.R. NO. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR. AND
COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE
V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents.

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

CONCURRING OPINION

SANDOVAL–GUTIERREZ, J.:

Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in choosing
one's battlecry, lest it does more harm than good to one's cause. In its original context, the complete
version of this Latin phrase means exactly the opposite of what it is frequently taken to mean. It originated
from a holy man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui solent dicere vox populi
vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And those people should not

112
be listened to who keep on saying, 'The voice of the people is the voice of God,' since the riotousness
of the crowd is always very close to madness."1 Perhaps, it is by providence that the true meaning of the
Latin phrase is revealed upon petitioners and their allies – that they may reflect upon
the sincerity and authenticity of their "people's initiative."

History has been a witness to countless iniquities committed in the name of God. Wars were waged,
despotism tolerated and oppressions justified – all these transpired as man boasted of God's imprimatur.
Today, petitioners and their allies hum the same rallying call, convincing this Court that the people's
initiative is the "voice of the people" and, therefore, the "voice of God." After a thorough consideration
of the petitions, I have come to realize that man, with his ingenuity and arrogance, has perfected the craft
of imitating the voice of God. It is against this kind of genius that the Court must guard itself.

The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section 2,
Article XVII of the Constitution which reads:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter,

The Congress shall provide for the implementation of the exercise of this right.

The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam Defensor
Santiago, et al., entitled "Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin,
petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in
their capacities as founding members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On March 19, 1997, this Court
rendered its Decision in favor of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An Act
Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, is "incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned." A majority of eight (8) Justices fully concurred with this ruling, while five (5)
subscribed to the opposite view. One (1) opined that there is no need to rule on the adequacy of R.A. No.
6735.

On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1) filed
an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen (13)
Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while the other
six (6) voted in favor of the minority opinion.3

A few months thereafter, or on September 23, 1997, the Court dismissed a similar case, entitled People's
Initiative for Reform, Modernization and Action (PIRMA) v. Commission on Elections4 on the ground that
the COMELEC did not commit grave abuse of discretion when it dismissed PIRMA's Petition for Initiative
to Propose Amendments to the Constitution "it appearing that that it only complied with the dispositions
in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC) promulgated on March 19, 1997,

113
and its Resolution of June 10, 1997." Seven (7) Justices voted that there was no need to re-examine its
ruling, as regards the issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the
different premise that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice
opined otherwise.

This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local Authorities of
the Philippines (ULAP), have gathered signatures in support of the proposed amendments to the
Constitution, which entail a change in the form of government from bicameral-
presidential to unicameral-parliamentary, thus:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament
which shall be composed of as many members as may be provided by law, to be apportioned
among the provinces, representative districts, and cities in accordance with the number of their
respective inhabitants, with at least three hundred thousand inhabitants per district, and on the
basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-
five years old on the day of the election, a resident of his district for at least one year prior thereto,
and shall be elected by the qualified voters of his district for a term of five years without limitation
as to the number thereof, except those under the party-list system which shall be provided for by
law and whose number shall be equal to twenty per centum of the total membership coming from
the parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under
the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the incumbent President and Vice President,

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the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister
under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI
are hereby retained and renumbered sequentially as Section 2, ad seriatium up to 26, unless they
are inconsistent with the Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of government; provided, however,
that any and all references therein to "Congress," "Senate," "House of Representatives" and
"Houses of Congress" shall be changed to read "Parliament;" that any and all references therein
to "Member(s) of Congress," "Senator(s)" or "Member(s) of Parliament" and any and all
references to the "President" and/or "Acting President" shall be changed to read "Prime
Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article
VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they
shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to
conform to a unicameral Parliamentary System of government; provided, however, that any and
all references therein to "Congress," "Senate," "House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament;" that any and all references therein to
"Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be
changed to read as "Member(s) of Parliament" and any and all references to the "President"
and/or "Acting President" shall be changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament
which shall continue until the Members of the regular Parliament shall have been elected and
shall have qualified. It shall be composed of the incumbent Members of the Senate and the House
of Representatives and the incumbent Members of the Cabinet who are heads of executive
departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside over its sessions for the election of
the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

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 Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among
the members of the interim Parliament, an interim Prime Minister, who shall be elected by a
majority vote of the members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may be delegated to him by the
incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament which shall
be synchronized and held simultaneously with the election of all local government officials. The
duty elected Prime Minister shall continue to exercise and perform the powers, duties and
responsibilities of the interim Prime Minister until the expiration of the term of the incumbent
President and Vice President.

Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the abstract of
the proposed amendments, quoted as follows:

Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution,
changing the form of government from the present bicameral-presidential to a unicameral-
parliamentary system of government, in order to achieve greater efficiency, simplicity and
economy in government; and providing an Article XVIII as Transitory Provisions for the orderly
shift from one system to another?

On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the COMELEC
a Petition for Initiative to Amend the Constitution.5 Five (5) days thereafter, they filed an Amended Petition
alleging that they are filing the petition in their own behalf and together with some 6.3 million registered
voters who have affixed their signatures on the signature sheets attached thereto. They claimed that
the signatures of registered voters appearing on the signature sheets, constituting at least twelve per
cent (12%) of all registered voters in the country, wherein each legislative district is represented by at
least three per cent (3%) of all the registered voters, were verified by their respective city or municipal
election officers.

Several organizations opposed the petition. 6

In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as basis this
Court's ruling in Santiago, permanently enjoining it "from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system."

Hence, the present petition for certiorari and mandamus praying that this Court set aside the COMELEC
Resolution and direct the latter tocomply with Section 4, Article XVII of the Constitution, which provides:

Sec. 4 x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast
in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission on Elections of the sufficiency of the petition.

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I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len Abigail
Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and Commissioners
be required to show why they should not be punished for contempt7 of court for disregarding the
permanent injunction issued by this Court in Santiago.

I
Respondent COMELEC did not act with grave abuse of discretion

Without necessarily brushing aside the other important issues, I believe the resolution of the present
petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it denied
Lambino, et al.'s petition for initiative to amend the Constitution on the basis of this Court's Decision in
Santiago v. COMELEC?

In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick is
the attendance of "grave abuse of discretion" on the part of the COMELEC.

Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in grave
abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment. The
abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.8

The Resolution of respondent COMELEC denying due course to the petition for initiative on the basis of a
case (Santiago) decided by this Court cannot, in any way, be characterized as "capricious or whimsical,"
"patent and gross," or "arbitrary and despotic." On the contrary, it was the most prudent course to take.
It must be stressed that in Santiago, this Court permanently enjoins respondent COMELEC "from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted." It being a fact that Congress has not enacted a sufficient
law, respondent COMELEC has no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a
citation for contempt. As succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice)
in his Separate Opinion in the subsequent case of PIRMA vs. COMELEC:9

x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said
decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the
land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion.
Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode
of action would have constituted defiance of the Court and would have been struck down as grave
abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of
justiciable controversies.

It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts, tribunals
and administrative bodies exercising quasi-judicial functions are obliged to conform to its
pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable
controversy. In other words, there is only one Supreme Court from whose decisions all other courts
should take their bearings.10 As a warning to lower court judges who would not adhere to its rulings, this
Court, in People v. Santos,11 held:

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 Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the
application of a doctrine promulgated by this Superiority is against his way of reasoning, or against
his conscience, he may state his opinion on the matter, but rather than disposing of the case in
accordance with his personal views he must first think that it is his duty to apply the law as
interpreted by the Highest Court of the Land, and that any deviation from a principle laid down
by the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and
expenses to the litigants. And if despite of what is here said, a Judge still believes that he cannot
follow Our rulings, then he has no other alternative than to place himself in the position that he
could properly avoid the duty of having to render judgment on the case concerned (Art. 9, C.C.),
and he has only one legal way to do that.

Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of Lambino,
et al. for it merely followed this Court's ruling in Santiago.

Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in Santiago
is the established doctrine and that the COMELEC did not commit grave abuse of discretion in invoking it,
thus:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed
to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing
that it only complied with the dispositions of this Court in G.R. No. 127325 promulgated on March
19, 1997, and its resolution on June 10, 1997.

Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and respect to
the pronouncement of this Court in Santiago.

II
The doctrine of stare decisis
bars the re-examination of Santiago

It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as
against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion for
reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the Decision
was overturned. It only shows that the opposite view fails to muster enough votes to modify or reverse
the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company
Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration signifies
that the ground relied upon have been found, upon due deliberation, to be without merit, as not being
of sufficient weight to warrant a modification of the judgment or final order.

With Santiago being the only impediment to the instant petition for initiative, petitioners persistently
stress that the doctrine of stare decisis does not bar its re-examination.

I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the decisions and
disturb not what is settled."15 As used in our jurisprudence, it means that "once this Court has laid down
a principle of law as applicable to a certain state of facts, it would adhere to that principle and apply it
to all future cases in which the facts are substantially the same as in the earlier controversy."16

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There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but the
doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the
law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The Nature of the
Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the opposite
way between another. 'If a group of cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case
was decided against me yesterday when I was a defendant, I shall look for the same judgment
today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in
my breast; it would be an infringement, material and moral, of my rights." Adherence to
precedent must then be the rule rather than the exception if litigants are to have faith in the even-
handed administration of justice in the courts.17

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the
observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar
circumstances and one of them is treated better or worse than the other. In this case, the cry of
injustice rightly goes up against the responsible agent or group; and unless that agent or group
can establish that there is some relevant dissimilarity after all between the individuals concerned
and their circumstances, he or they will be guilty as charged.18

Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior
decisions, "It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must be
followed even though the case, if considered anew, might be decided differently by the current
justices. This policy x x x 'is based on the assumption that certainty, predictability and stability in the
law are the major objectives of the legal system; i.e., that parties should be able to regulate their
conduct and enter into relationships with reasonable assurance of the governing rules of
law.19 Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of
which is roughly proportional to a number of factors, including the age of the precedent, the nature and
extent of public and private reliance on it, and its consistency or inconsistency with other related rules
of law. Here, petitioners failed to discharge their task.

Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years ago. During
that span of time, the Filipino people, specifically the law practitioners, law professors, law students, the
entire judiciary and litigants have recognized this Court's Decision as a precedent. In fact,
the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the legislature has
relied on said Decision, thus, several bills have been introduced in both Houses of Congress to cure the
deficiency. I cannot fathom why it should be overturned or set aside merely on the basis of the petition
of Lambino, et al. Indeed, this Court's conclusion in Santiago that R.A. No. 6735 is incomplete, inadequate
or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned remains a precedent and must be upheld.

III
The proposed constitutional changes constitute revisions and not mere amendments

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Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus:

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or

(2) A Constitutional Convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
votes, of which every legislative district must be represented by at least three per centum of the
registered voters therein. x x x. (Emphasis supplied)

At the outset, it must be underscored that initiative and referendum, as means by which the people can
directly propose changes to the Constitution, were not provided for in the 1935 and 1973 Constitutions.
Thus, under these two (2) Constitutions, there was no demand to draw the distinction between an
amendment and a revision, both being governed by a uniform process. This is not so under our present
Constitution. The distinction between an amendment and a revision becomes crucial because only
amendments are allowed under the system of people's initiative. Revisions are within the exclusive
domain of Congress, upon a vote of three-fourths of all its members, or of a Constitutional Convention.

The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers
only amendments, thus:

The sponsor, Commissioner Suarez, is recognized.

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing initiative. This is now covered by Section 2 of
the complete committee report. With the permission of the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal was
suggested on the theory that this matter of initiative which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not extend
to the revision of the entire Constitution, so we removed it from the operation of Section 1 of
the proposed Article on Amendment or Revision.

xxx xxx xxx

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 MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield
to a few questions?

MR. DAVIDE: With pleasure, Madam President.

MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on line I

refers to "amendments." Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision?"

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision"

MR. MAAMBONG: Thank you.20

Considering that the initiative on the Constitution only permits amendments, it is imperative to examine
whether petitioners' proposed changes partake of the nature of amendments, not revisions.

The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following
provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative
Department); Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further includes Article
XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from the bicameral-
presidential to a unicameral-parliamentary form of government.

Succinctly, the proposals envision a change in the form of government, from bicameral-presidential to
unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim National
Assembly; change in the terms of Members of Parliament; and the election of a Prime Minister who shall
be vested with executive power.

Petitioners contend that the proposed changes are in the nature of amendments, hence, within the
coverage of a "people's initiative."

I disagree.

The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986
Constitutional Commission, characterized an amendment and a revision to the Constitution as follows:

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision however, the guiding original intention
and plan contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the document to determine how and to what
extent they should be altered.21

Obviously, both "revision" and amendment" connote change; any distinction between the two must be
based upon the degree of change contemplated. In Kelly v. Laing,22 the Supreme Court of Michigan made
the following comparison of the two terms:

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 "Revision" and "amendment" have the common characteristics of working changes in the charter,
and are sometimes used in exactly the same sense but there is an essential difference between
them.

"Revision" implies a reexamination of the whole law and a redraft without obligation to
maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a
constitution or charter, it suggests a convention to examine the whole subject and to prepare and
submit a new instrument whether the desired changes from the old are few or
many. Amendment implies continuance of the general plan and purpose of the law, with
corrections to better accomplish its purpose. Basically, revision suggests fundamental change,
while amendment is a correction of detail.

Although there are some authorities which indicate that a change in a city's form of government may be
accomplished by a process of "amendment," the cases which so hold seem to involve statutes which only
distinguish between amendment and totally new charters.23 However, as in Maine law, where the statute
authorizing the changes distinguishes between "charter amendment" and "charter revision," it has been
held that "(a) change in the form of government of a home rule city may be made only by revision of
the city charter, not by its amendment."24

In summary, it would seem that any major change in governmental form and scheme would probably be
interpreted as a "revision" and should be achieved through the more thorough process of deliberation.

Although, at first glance, petitioners' proposed changes appear to cover isolated and specific provisions
only, however, upon careful scrutiny, it becomes clear that the proposed changes will alter the very
structure of our government and create multifarious ramifications. In other words, the proposed
changes will have a "domino effect" or, more appropriately, "ripple effect" on other provisions of the
Constitution.

At this juncture, it must be emphasized that the power reserved to the people to effect changes in the
Constitution includes the power to amend anysection in such a manner that the proposed change, if
approved, would "be complete within itself, relate to one subject and not substantially affect any other
section or article of the Constitution or require further amendments to the Constitution to accomplish
its purpose."25 This is clearly not the case here.

Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined
doctrine of separation of powers of government, embodied in our Constitution, by providing for an
Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive
Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as expressed
through a "vote of confidence." To my mind, this doctrine of separation of powers is so interwoven in
the fabric of our Constitution, that any change affecting such doctrine must necessarily be a revision.

In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:

It is thus clear that that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that
purpose x x x. Consequently, if the scope of the proposed initiative measure now before us
is so broad that if such measure became law a substantial revision of our present state

122
 Constitution would be effected, then the measure may not properly be submitted to the
electorate until and unless it is first agreed upon by a constitutional convention. x x x.

Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment, but
is in actuality a revision, as set forth in Adams v. Gunter27:

The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but provides
for a change in the form of the legislative branch of government, which has been in existence in
the United States Congress and in all of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more revolutionary change. The concept of a House and
a Senate is basic in the American form of government. It would not only radically change the
whole pattern of the government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to carry on government.

Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially, with
the inclusion of the following "omnibus provision":

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamnetary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions" which shall read, as follows:

xxxxxxxxx

Section 3. Upon the expiration of the term of the incumbent President and Vice-President, with
the exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby
amended x x x x x x and all other Sections of Article VII shall be retained and numbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1
hereof, in which case they shall be deemed amended so as to conform to a unicameral
Parliamentary system of government x x x x x x .

xxxxxxxxx

Section 4. (1) x x x

(3) Within forty-five days from ratification of these amendments, the Interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution, consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

The above provisions will necessarily result in a "ripple effect" on the other provisions of the Constitution
to make them conform to the qualities of unicameral-parliamentary form of government. With one
sweeping stroke, these proposed provisions automatically revise some provisions of the
Constitution. In McFadden, the same practice was considered by the Court to be in the nature
of substantial revision, necessitating a constitutional convention. I quote the pertinent portion of its
ruling, thus:

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 There is in the measure itself, no attempt to enumerate the various and many articles and sections
of our present Constitution which would be affected, replaced or repealed. It purports only to add
one new article but its framers found it necessary to include the omnibus provision (subdivision
(7) of section XII) that "If any section, subsection, sentence, clause or phrase of the constitution is
in conflict with any of the provisions of this article, such section, subsection, sentence, clause, or
phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the
proposed intitiative measure now before us is so broad that if such measure become law a
substantial revision of our present state Constitution would be be effected, then the measure may
not properly be submitted to the electorate until and unless it is first agreed upon by a
constitutional convention.28

Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only affect
the Articles or Sections sought to be changed. Rather, they are in the nature of revisions which will affect
considerable portions of the Constitution resulting in the alteration of our form of government. The
proposed changes cannot be taken in isolation since these are connected or "interlocked" with the other
provisions of our Constitution. Accordingly, it has been held that: "If the changes attempted are so
sweeping that it is necessary to include the provisions interlocking them, then it is plain that the plan
would constitute a recasting of the whole Constitution and this, we think, it was intended to be
accomplished only by a convention under Section 2 which has not yet been disturbed."29

I therefore conclude that since the proposed changes partake of the nature of a revision of the
Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas expressed this
insight:

But why limit initiative and referendum to simple amendments? The answer, which one can easily
glean from the rather long deliberation on initiative and referendum in the 1986 Constitutional
Commission, is practicality. In other words, who is to formulate the revision or how is it to be
formulated? Revision, as concretely being proposed now, is nothing less than a rebuilding of the
Philippine constitutional structure. Who were involved in formulating the structure? What
debates ensued? What records are there for future use in interpreting the provisions which may
be found to be unclear?

In a deliberative body like Congress or a Constitutional Convention, decisions are reached after
much purifying debate. And while the deliberations proceed, the public has the opportunity to
get involved. It is only after the work of an authorized body has been completed that it is
presented to the electorate for final judgment. Careful debate is important because the
electorate tends to accept what is presented to it even sight unseen.30

IV
R.A. No. 6735 is insufficient to implement the People's initiative

Section 2, Article XVII of the 1987 Constitution reads:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the

124
 registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter,

The Congress shall provide for the implementation of the exercise of this right.

On its face, Section 2 is not a self-executory provision. This means that an enabling law is imperative for
its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into this constitutional
provision. However, as previously narrated, this Court struck the law in Santiago for being incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned.

The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress neither
amended it nor passed a new law to supply its deficiencies.

Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3)
justifications why R.A. No. 6735 must be considered a sufficient law, thus:

1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes
to the Constitution;

2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as
instrument to implement the people's initiative; and

3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative
intent to use it as instrument to implement people's initiative.

I regret to say that the foregoing justifications are wanting.

A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives
on national and local legislation. Its references to initiatives on the Constitution are few,
isolated and misplaced. Unlike in the initiatives on national and local legislation, where R.A. No. 6735
provides a detailed, logical, and exhaustive enumeration on their implementation,31 however, as regards
initiative on the Constitution, the law merely:

(a) mentions the word "Constitution" in Section 2;32

(b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems
of initiative in Section 3;33

(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people;34

(d) reiterates the constitutional requirements as to the number of voters who should sign the
petition;35 and

(e) provides the date for the effectivity of the approved proposition.36

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In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may be
accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by oppositor-
intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago, various bills
have been introduced in both Houses of Congress providing for a complete and adequate process for
people's initiative, such as:

· Names, signatures and addresses of petitioners who shall be registered voters;

· A statement of the provision of the Constitution or any part thereof sought to be amended and
the proposed amendment;

· The manner of initiation - in a congressional district through a petition by any individual, group,
political party or coalition with members in the congressional district;

· The language used: the petition should be printed in English and translated in the local language;

· Signature stations to be provided for;

· Provisions pertaining to the need and manner of posting, that is, after the signatures shall have
been verified by the Commission, the verified signatures shall be posted for at least thirty days in
the respective municipal and city halls where the signatures were obtained;

· Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to
be filed with the COMELEC and decided within sixty (60) days from the filing of said protest.

None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating its incompleteness
and inadequacy.

V
Petitioners are not Proper Parties to
File the Petition for Initiative

VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article XVII of the
Constitution and R.A. No. 6735

I shall discuss the above issues together since they are interrelated and inseparable. The determination
of whether petitioners are proper parties to file the petition for initiative in behalf of the alleged 6.3
million voters will require an examination of whether they have complied with the provisions of Section
2, Article XVII of the Constitution.

To reiterate, Section 2, Article XVII of the Constitution provides:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be authorized

126
 within five years following the ratification of this Constitution nor oftener than once every five
years thereafter.

The Congress shall provide for the implementation of the exercise of this right. (Underscoring
supplied)

The mandate of the above constitutional provisions is definite and categorical. For a people's initiative to
prosper, the following requisites must be present:

1. It is "the people" themselves who must "directly propose" "amendments" to the Constitution;

2. The proposed amendments must be contained in "a petition of at least twelve per centum of
the total number of registered voters;" and

3. The required minimum of 12% of the total number of registered voters "must be represented
by at least three per centum of the registered voters" of "every legislative district."

In this case, however, the above requisites are not present.

The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two
registered voters. As shown in the "Verification/Certification with Affidavit of Non-Forum
Shopping" contained in their petition, they alleged under oath that they have caused the preparation of
the petition in their personal capacity as registered voters "and as representatives" of the supposed 6.3
million registered voters. This goes to show that the questioned petition was not initiated directly by the
6.3 million people who allegedly comprised at least 12% of the total number of registered voters, as
required by Section 2. Moreover, nowhere in the petition itself could be found the signatures of the 6.3
million registered voters. Only the signatures of petitioners Lambino and Aumentado were affixed therein
"as representatives" of those 6.3 million people. Certainly, that is not the petition for people's
initiative contemplated by the Constitution.

Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as
representatives" of the alleged 6.3 million registered voters. Such act of representation is
constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the Constitution
shall be "directly proposed by the people through initiative upon a petition of at least twelve per centum
of the total number of registered voters." Obviously, the phrase "directly proposed by the
people" excludes any person acting as representative or agent of the 12% of the total number of
registered voters. The Constitution has bestowed upon the people the right to directly propose
amendments to the Constitution. Such right cannot be usurped by anyone under the guise of being the
people's representative. Simply put, Section 2 does not recognize acts of representation. For it is only "the
people" (comprising the minimum of 12% of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the registered voters therein) who
are the proper parties to initiate a petition proposing amendments to the Constitution. Verily, the petition
filed with the COMELEC by herein petitioners Lambino and Aumentado is not a people's initiative.
Necessarily, it must fail.

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Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and
misleading. There is no people's voice to be heard and heeded as this petition for initiative is not truly
theirs, but only of petitioners Lambino and Aumentado and their allies.

VII
The issues at bar are not political questions.

Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of the
exercise of the right of the sovereign people to amend the Constitution and their will, as expressed by the
fact that over six million registered voters indicated their support of the Petition for initiative is a purely
political question;" and (2) "[t]he power to propose amendments to the Constitution is a right explicitly
bestowed upon the sovereign people. Hence, the determination by the people to exercise their right to
propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit
of a political question."

The "political question doctrine" was first enunciated by the US Supreme Court in Luther v.
Borden.37 Faced with the difficult question of whether the Supreme Court was the appropriate institution
to define the substantive content of republicanism, the US Supreme Court, speaking thru Mr. Justice Roger
B. Taney, concluded that "the sovereignty in every State resides in the people, as to how and whether
they exercised it, was under the circumstances of the case, a political question to be settled by the
political power." In other words, the responsibility of settling certain constitutional questions was left to
the legislative and executive branches of the government.

The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to increased
migration brought about by the Industrial Revolution, the urban population of Rhode Island increased.
However, under the 1663 Royal Charter which served as the State Constitution, voting rights were largely
limited to residents of the rural districts. This severe mal-apportionment of suffrage rights led to the "Dorr
Rebellion." Despairing of obtaining remedies for their disenfranchisement from the state government,
suffrage reformers invoked their rights under the American Declaration of Independence to "alter or
abolish" the government and to institute a new one. The reformers proceeded to call for and hold an
extralegal constitutional convention, drafted a new State Constitution, submitted the document for
popular ratification, and held elections under it. The State government, however, refused to cede power,
leading to an anomalous situation in that for a few months in 1842, there were two opposing state
governments contending for legitimacy and possession of state of offices.

The Rhode Island militia, under the authority of martial law, entered and searched the house of Martin
Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US Supreme
Court, Luther's counsel argued that since the State's archaic Constitution prevented a fair and peaceful
address of grievances through democratic processes, the people of Rhode Island had instead chosen to
exercise their inherent right in popular sovereignty of replacing what they saw as an oppressive
government. The US Supreme Court deemed the controversy as non-justiciable and inappropriate for
judicial resolution.

In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe
situations where Federal courts should not intervene in political questions which they have neither the
competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-3 vote
branded the apportionment of legislative districts in Illinois "as a political question and that the

128
invalidation of the districts might, in requiring statewide elections, create an evil greater than that
sought to be remedied."

While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to
come up with a definition of the term "political question." Thus, in Vera v. Avelino,39 this Court ruled that
properly, political questions are "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government." In Tañada and Macapagal v.
Cuenco,40 the Court held that the term political question connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure.

In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in
determining whether a question before it is political, rather than judicial in nature, to wit:

1) there is a textually demonstrable constitutional commitment of the issue to a coordinate

political department; or

2) there is a lack of judicially discoverable and manageable standards for resolving it; or

3) there is the sheer impossibility of deciding the matter without an initial policy determination
of a kind clearly for non-judicial discretion; or

4) there is the sheer impossibility of the Court's undertaking an independent resolution without
expressing lack of respect due the coordinate branches of government; or

5) there is an unusual need for unquestioning adherence to a political decision already made; or

6) there exists the potentiality of embarrassment arising from multifarious pronouncements by

various departments on one question.

None of the foregoing standards is present in the issues raised before this Court. Accordingly, the issues
are justiciable. What is at stake here is the legality and not the wisdom of the act complained of.

Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it is not
precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1, Article VIII
of the Constitution, following Daza v. Singson.43 As pointed out in Marcos v. Manglapus,44 the present
Constitution limits resort to the political question doctrine and broadens the scope of judicial power which
the Court, under previous charters, would have normally and ordinarily left to the political departments
to decide.

CONCLUSION

In fine, considering the political scenario in our country today, it is my view that the so-called people's
initiative to amend our Constitution from bicameral-presidential to unicameral-parliamentary is actually
not an initiative of the people, but an initiative of some of our politicians. It has not been shown by
petitioners, during the oral arguments in this case, that the 6.3 million registered voters who affixed their

129
signatures understood what they signed. In fact, petitioners admitted that the Constitutional provisions
sought to be amended and the proposed amendments were not explained to all those registered voters.
Indeed, there will be no means of knowing, to the point of judicial certainty, whether they really
understood what petitioners and their group asked them to sign.

Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The Court
then ruled that "This being the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect," although it had notice that the Constitution proposed
by the 1971 Constitutional Convention was not validly ratified by the people in accordance with the 1935
Constitution. The Court concluded, among others, that the viva voce voting in the Citizens' Assemblies
"was and is null and void ab initio." That was during martial law when perhaps majority of the justices
were scared of the dictator. Luckily at present, we are not under a martial law regime. There is, therefore,
no reason why this Court should allow itself to be used as a legitimizing authority by the so-called people's
initiative for those who want to perpetuate themselves in power.

At this point, I can say without fear that there is nothing wrong with our present government structure.
Consequent1y, we must not change it. America has a presidential type of government. Yet, it thrives
ideally and has become a super power. It is then safe to conclude that what we should change are some
of the people running the government, NOT the SYSTEM.

According to petitioners, the proposed amendment would effect a more efficient, more economical and
more responsive government.

Is there hope that a new breed of politicians, more qualified and capable, may be elected as members
and leaders of the unicameral-parliament? Or will the present members of the Lower House continue to
hold their respective positions with limitless terms?

Will the new government be more responsive to the needs of the poor and the marginalized? Will it be
able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection for the
weak?

This is a defining moment in our history. The issue posed before us is crucial with transcendental
significance. And history will judge us on how we resolve this issue – shall we allow the revision of our
Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful people's
initiative?

Amending the Constitution involving a change of government system or structure is a herculean task
affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to more
knowledgeable people elected as members of a Constitutional Convention.

Yes, the voice of the people is the voice of God. But under the circumstances in this case, the voice of
God is not audible.

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No.
174299.

130
 ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

____________________

EN BANC

G.R. No. 174153

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and JOHN DOE and PETER DOE, respondents.

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

SEPARATE CONCURRING OPINION

CALLEJO, SR., J.:

I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not commit an
abuse of its discretion in dismissing the amended petition before it. The proposals of petitioners
incorporated in said amended petition are for the revision of the 1987 Constitution. Further, the amended
petition before the respondent COMELEC is insufficient in substance.

The Antecedents

On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a
petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO THE 1987 CONSTITUTION THROUGH
A PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY
GOVERNMENT BY AMENDING ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The case was docketed as
EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is referred to as
the petition for initiative.

Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with
those who have affixed their signatures to the signature sheets appended thereto who are Filipino
citizens, residents and registered voters of the Philippines, and they constitute at least twelve percent

131
(12%) of all the registered voters in the country, wherein each legislative district is represented by at least
three percent (3%) of all the registered voters therein.

Petitioners further alleged therein that the filing of the petition for initiative is based on their
constitutional right to propose amendments to the 1987 Constitution by way of people's initiative, as
recognized in Section 2, Article XVII thereof, which provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right."

According to petitioners, while the above provision states that "(T)he Congress shall provide for the
implementation of the exercise of this right," the provisions of Section 5(b) and (c), along with Section 7
of Republic Act (RA) 6735,1 are sufficient enabling details for the people's exercise of the power. The said
sections of RA 6735 state:

Sec. 5. Requirements. – (a) To exercise the power x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which every legislative district
must be represented by at least three per centum (3%) of the registered voters therein. Initiative
on the Constitution may be exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.

(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary in not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition.

xxxx

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 Sec. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the basis
of the registry list of voters, voters' affidavits and voters identification cards used in the
immediately preceding election.

They also alleged that the COMELEC has the authority, mandate and obligation to give due course to the
petition for initiative, in compliance with the constitutional directive for the COMELEC to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum
and recall."2

Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in
the 1987 Constitution and prayed that the COMELEC issue an order:

1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the Petition in Filipino and English at least twice in newspapers of
general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by this Honorable Commission of the sufficiency of this Petition, to allow the Filipino
people to express their sovereign will on the proposition.

Petitioners pray for such other reliefs deemed just and equitable in the premises.

The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and
dismissing the petition for initiative. The COMELEC ruled that:

We agree with the petitioners that this Commission has the solemn Constitutional duty to enforce
and administer all laws and regulations relative to the conduct of, as in this case, initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

"Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the

people through initiative, upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by at
least three per centum of the registered voters therein. x x x.

The Congress shall provide for the implementation of the exercise of this right."

The aforequoted provision of the Constitution being a non-self-executory provision needed an

enabling law for its implementation. Thus, in order to breathe life into the constitutional right of
the people under a system of initiative to directly propose, enact, approve or reject, in whole or
in part, the Constitution, laws, ordinances, or resolution, Congress enacted RA 6735.

133
 However, the Supreme Court, in the landmark case of Santiago v. Commission on Elections struck
down the said law for being incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned

The Supreme Court, likewise, declared that this Commission should be permanently enjoined
from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is represented
by at least three per centum of the registered voters therein, still the Petition cannot be given due
course since the Supreme Court categorically declared RA 6735 as inadequate to cover the system
of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement of
the High Court that in the absence of a valid enabling law, this right of the people remains nothing
but an "empty right," and that this Commission is permanently enjoined from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution. (Citations
omitted.)

Aggrieved, petitioners elevated the case to this Court on a petition for certiorari and mandamus under
Rule 65 of the Rules of Court.

The Petitioners' Case

In support of their petition, petitioners alleged, inter alia, that:

I.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN

REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE,
BECAUSE THE CITED SANTIAGO RULING OF 19 MARCH 1997 CANNOT BE CONSIDERED THE
MAJORITY OPINION OF THE SUPREME COURT EN BANC, CONSIDERING THAT UPON ITS
RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997, NO MAJORITY VOTE WAS SECURED TO
DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN
STANDARD.

II.

THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND EXISTING
APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY FOR THE
EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER ARE ADEQUATE AND
COMPLETE.

III.

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THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN
REFUSING TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO THE PETITION
FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS CONSTITUTIONAL MANDATE AND
DISREGARDING AND CONTRAVENING THE WILL OF THE PEOPLE.

A.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT

PETITION FOR INITIATIVE FILED BY THE PETITIONERS.

1.

THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE

POWER TO PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW
GIVING VIBRANT LIFE TO THIS CONSTITUTIONAL PROVISION

2.

PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT

OF THE PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL
HAS BEEN INVARIABLY UPHELD

3.

THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL

QUESTION WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE.

4.

BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE

DULY VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO
PERFORM THIS SACRED EXERCISE OF THEIR SOVEREIGN POWER.

B.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT

PETITION FOR INITIATIVE FILED BY THE PETITIONERS

C.

THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE

DELFIN PETITION.

1.

IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS

IN THE BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY.

135
 IV.

THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A DUTY

MANDATED BY LAW.

A.

THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE.3

Petitioners Failed to Allege and Demonstrate All the Essential

Facts To Establish the Right to a Writ of Certiorari

Section 1, Rule 65 of the Rules of Court reads:

Sec. 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule
46.

A writ for certiorari may issue only when the following requirements are set out in the petition and
established:

(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial
functions;

(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and

(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. x
x x4

The Court has invariably defined "grave abuse of discretion," thus:

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily
or despotically. For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise
of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil
law and common law traditions.5

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There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious, whimsical,
arbitrary or despotic manner in the exercise of its judgment amounting to lack of jurisdiction. Mere abuse
of discretion is not enough.6 The only question involved is jurisdiction, either the lack or excess thereof,
and abuse of discretion warrants the issuance of the extraordinary remedy of certiorari only when the
same is grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion,
prejudice or personal hostility. A writ of certiorari is a remedy designed for the correction of errors of
jurisdiction and not errors of judgment.7 An error of judgment is one in which the court may commit in
the exercise of its jurisdiction, which error is reversible only by an appeal.8

In the present case, it appears from the assailed Resolution of the COMELEC that it denied the petition for
initiative solely in obedience to the mandate of this Court in Santiago v. Commission on Elections.9 In said
case, the Court En Banc permanently enjoined the COMELEC from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system. When the COMELEC denied the petition for
initiative, there was as yet no valid law enacted by Congress to provide for the implementation of the
system.

It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition for
initiative as "capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of
jurisdiction." In fact, in so doing, the COMELEC merely followed or applied, as it ought to do, the Court's
ruling in Santiago to the effect that Section 2, Article XVII of the Constitution on the system of initiative is
a non self-executory provision and requires an enabling law for its implementation. In relation thereto,
RA 6735 was found by the Court to be "incomplete, inadequate, or wanting in essential terms and
conditions" to implement the constitutional provision on initiative. Consequently, the COMELEC was
"permanently enjoined from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system." The decision of the Court En Banc interpreting RA 6735 forms part of the
legal system of the Philippines.10 And no doctrine or principle laid down by the Court En Banc may be
modified or reversed except by the Court En Banc,11 certainly not by the COMELEC. Until the Court En
Banc modifies or reverses its decision, the COMELEC is bound to follow the same.12 As succinctly held in
Fulkerson v. Thompson:13

Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior
court is bound by the judgment or decree as the law of the case, and must carry it into execution
according to the mandate. The inferior court cannot vary it, or judicially examine it for any other
purpose than execution. It can give no other or further relief as to any matter decided by the
Supreme Court even where there is error apparent; or in any manner intermeddle with it further
than to execute the mandate and settle such matters as have been remanded, not adjudicated by
the Supreme Court….

The principles above stated are, we think, conclusively established by the authority of adjudged
cases. And any further departure from them would inevitably mar the harmony of the whole
judiciary system, bring its parts into conflict, and produce therein disorganization, disorder, and
incalculable mischief and confusion. Besides, any rule allowing the inferior courts to disregard the
adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be
repugnant to the principles established by the constitution, and therefore void.14

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At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by the
Court therein. Like petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for
Reforms, Modernization and Action (PIRMA), et al., invoked Section 2, Article XVII of the Constitution as
they filed with the COMELEC a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials,
By People's Initiative" (the Delfin petition). They asked the COMELEC to issue an order fixing the time and
date for signature gathering all over the country; causing the necessary publications of said order and
their petition in newspapers of general and local circulation and instructing municipal election registrars
in all regions all over the country and to assist petitioners in establishing signing stations. Acting thereon,
the COMELEC issued the order prayed for.

Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the
COMELEC from implementing its order. The Court, speaking through Justice Hilario G. Davide, Jr. (later
Chief Justice), granted the petition as it declared:

1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned";

2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and regulations on the conduct of
initiative on amendments to the Constitution because the COMELEC is without authority to promulgate
the rules and regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative; and

3. The Delfin petition insufficient as it did not contain the required number of signatures of registered
voters.

The Court concluded in Santiago that "the COMELEC should be permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law
shall have been validly enacted to provide for the implementation of the system." The dispositive portion
of the decision reads:

WHEREFORE, judgment is hereby rendered:

a) GRANTING the instant petition;

b) DECLARING RA 6735 inadequate to cover the system of initiative on amendments to the

Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition (UND-96-037).

The Temporary Restraining Order issued on December 18, 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.16

The Court reiterated its ruling in Santiago in another petition which was filed with the Court by PIRMA
and the spouses Alberto and Carmen Pedrosa (who were parties in Santiago) docketed as PIRMA v.

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Commission on Elections.17 The said petitioners, undaunted by Santiago and claiming to have gathered
5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that COMELEC officers be
ordered to verify all the signatures collected in behalf of the petition and, after due hearing, that it
(COMELEC) declare the petition sufficient for the purpose of scheduling a plebiscite to amend the
Constitution. Like the Delfin petition in Santiago, the PIRMA petition proposed to submit to the people in
a plebiscite the amendment to the Constitution on the lifting of the term limits of elected officials.

The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no basis.
The COMELEC, in its Resolution dated July 8, 1997, dismissed the PIRMA petition citing the permanent
restraining order issued against it by the Court in Santiago. PIRMA and the spouses Pedrosa forthwith
elevated the matter to the Court alleging grave abuse of discretion on the part of the COMELEC in refusing
to exercise jurisdiction over, and thereby dismissing, their petition for initiative to amend the Constitution.

The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses Albert
Pedrosa. The Court declared that the COMELEC merely complied with the dispositions in the decision of
the Court in Santiago and, hence, cannot be held to have committed a grave abuse of its discretion in
dismissing the petition before it:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed
to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing
that it only complied with the dispositions in the Decision of this Court in G.R. No. 127325,
promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second issue
posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On
this issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide,
Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J.,
agreed that there was no need for re-examination of said second issue since the case a bar is not
the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno,
Francisco, Hermosisima and Panganiban, JJ., opined that there was need for such a re-
examination. x x x

WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)

In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and argues that
the COMELEC should not have applied the ruling in Santiago to the petition for initiative because the
permanent injunction therein referred only to the Delfin petition. The OSG buttresses this argument by
pointing out that the Temporary Restraining Order dated December 18, 1996 that was made permanent
in the dispositive portion referred only to the Delfin petition.

The OSG's attempt to isolate the dispositive portion from the body of the Court's decision in Santiago is
futile. It bears stressing that the dispositive portion must not be read separately but in connection with
the other portions of the decision of which it forms a part. To get to the true intent and meaning of a
decision, no specific portion thereof should be resorted to but the same must be considered in its entirety.
Hence, a resolution or ruling may and does appear in other parts of the decision and not merely in
the fallo thereof.19

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The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC "from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a
sufficient law shall have been validly enacted to provide for the implementation of the system" is thus as
much a part of the Court's decision as its dispositive portion. The ruling of this Court is of the nature of
an in rem judgment barring any and all Filipinos from filing a petition for initiative on amendments to
the Constitution until a sufficient law shall have been validly enacted. Clearly, the COMELEC, in denying
due course to the present petition for initiative on amendments to the Constitution conformably with the
Court's ruling in Santiago did not commit grave abuse of discretion. On the contrary, its actuation is in
keeping with the salutary principle of hierarchy of courts. For the Court to find the COMELEC to have
abused its discretion when it dismissed the amended petition based on the ruling of this Court in Santiago
would be sheer judicial apostasy.

As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions all other
courts should take their bearings."20 This truism applies with equal force to the COMELEC as a quasi-
judicial body for, after all, judicial decisions applying or interpreting laws or the Constitution "assume the
same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the
extent that they are applicable, the criteria which must control the actuations not only of those called
upon to abide thereby but also of those duty bound to enforce obedience thereto."21

Petitioners Cannot Ascribe

Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago

It is elementary that the opinion of the majority of the members of the Court, not the opinion of the
minority, prevails. As a corollary, the decision of the majority cannot be modified or reversed by the
minority of the members of the Court.

However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the
Court's declaration therein on the inadequacy, incompleteness and insufficiency of RA 6735 to implement
the system of initiative to propose constitutional amendments did not constitute the majority opinion.
This contention is utterly baseless.

Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the members
of the Court, who actually took part in the deliberations thereon. On the other hand, five Justices,23 while
voting for the dismissal of the Delfin petition on the ground of insufficiency, dissented from the majority
opinion as they maintained the view that RA 6735 was sufficient to implement the system of initiative.

Given that a clear majority of the members of the Court, eight Justices, concurred in the decision
in Santiago, the pronouncement therein that RA 6735 is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned" constitutes a
definitive ruling on the matter.

In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision were
denied with finality as only six Justices, or less than the majority, voted to grant the same. The Resolution
expressly stated that the motion for reconsideration failed "to persuade the requisite majority of the

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Court to modify or reverse the Decision of 19 March 1977."24 In fine, the pronouncement in Santiago as
embodied in the Decision of March 19, 1997 remains the definitive ruling on the matter.

It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them and
to re-examine its ruling as regards RA 6735. By a vote of seven members of the Court, including Justice
Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no need to resolve the issue.
Five members of the Court opined that there was a need for the re-examination of said ruling. Thus, the
pronouncement of the Court in Santiago remains the law of the case and binding on petitioners.

If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the Court
should have resolved to set aside its original resolution dismissing the petition and to grant the motion
for reconsideration and the petition. But the Court did not. The Court positively and unequivocally
declared that the COMELEC merely followed the ruling of the Court in Santiago in dismissing the petition
before it. No less than Senior Justice Reynato S. Puno concurred with the resolution of the Court. It
behooved Justice Puno to dissent from the ruling of the Court on the motion for reconsideration of
petitioners precisely on the ground that there was no doctrine enunciated by the Court in Santiago. He
did not. Neither did Chief Justice Artemio V. Panganiban, who was a member of the Court.

That RA 6735 has failed to validly implement the people's right to directly propose constitutional
amendments through the system of initiative had already been conclusively settled in Santiago as well as
in PIRMA. Heeding these decisions, several lawmakers, including no less than Solicitor General Antonio
Eduardo Nachura when he was then a member of the House of Representatives,25 have filed separate bills
to implement the system of initiative under Section 2, Article XVII of the Constitution.

In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the three (3)
pending bills are: Senate Bill No. 119 entitled An Act Providing for People's Initiative to Amend the
Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate Bill No. 2189 entitled An Act
Providing for People's Initiative to Amend the Constitution introduced by Senator Miriam Defensor
Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of People's Initiative to Propose
Amendments to the Constitution introduced by Senator Richard Gordon.

In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed by
Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee Marcos, House Bill No.
05025 filed by Representative Roberto Cajes, and House Bill No. 05026 filed by Representative Edgardo
Chatto. These House bills are similarly entitled An Act Providing for People's Initiative to Amend the
Constitution.

The respective explanatory notes of the said Senate and House bills uniformly recognize that there is, to
date, no law to govern the process by which constitutional amendments are introduced by the people
directly through the system of initiative. Ten (10) years after Santiago and absent the occurrence of any
compelling supervening event, i.e., passage of a law to implement the system of initiative under Section
2, Article XVII of the Constitution, that would warrant the re-examination of the ruling therein, it behooves
the Court to apply to the present case the salutary and well-recognized doctrine of stare decisis. As earlier
shown, Congress and other government agencies have, in fact, abided by Santiago. The Court can do no
less with respect to its own ruling.

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Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made to
depend on the individual opinions of the members who compose it – the Supreme Court, as an institution,
has already determined RA 6735 to be "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned" and therefore the same
remains to be so regardless of any change in the Court's composition.26 Indeed, it is vital that there be
stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should
not be encouraged to seek re-examination of determined principles and speculate on fluctuation of the
law with every change in the expounders of it.27

Proposals to Revise the Constitution,

As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments

Even granting arguendo the Court, in the present case, abandons its pronouncement in Santiago and
declares RA 6735, taken together with other extant laws, sufficient to implement the system of initiative,
still, the amended petition for initiative cannot prosper. Despite the denomination of their petition, the
proposals of petitioners to change the form of government from the present bicameral-presidential to a
unicameral-parliamentary system of government are actually for the revision of the Constitution.

Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

"Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament
which shall be composed of as many members as may be provided by law, to be apportioned
among the provinces, representative districts, and cities in accordance with the number of their
respective inhabitants, with at least three hundred thousand inhabitants per district, and on the
basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least one member.

"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-
five years old on the day of the election, a resident of his district for at least one year prior thereto,
and shall be elected by the qualified voters of his district for a term of five years without limitation
as to the number thereof, except those under the party-list system which shall be provided for by
law and whose number shall be equal to twenty per centum of the total membership coming from
the parliamentary districts."

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:

"Section 1. There shall be a President who shall be the Head of State. The executive power shall
be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be

142
 elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-
Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions,"
which shall read as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under
the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.,

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death, permanent
disability, resignation or removal from office of both the incumbent President and Vice President,
the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister
under Article VII as amended.

Section 2. "Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI
are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they
are inconsistent with the Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of government; provided, however,
that any and all references therein to "Congress," "Senate," "House of Representatives" and
"House of Congress," "Senator[s] or "Member[s] of the House of Representatives" and "House of
Congress" shall be changed to read "Parliament"; that any and all references therein to
"Member[s] of the House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or "Acting President" shall be
changed to read "Prime Minister."

Section 3. "Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article
VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they
shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to
conform to a unicameral Parliamentary System of government; provided, however, that any and
all references therein to "Congress," "Senate," "House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament"; that any and all references therein to
"Member[s] of Congress," "Senator[s]" or "Member[s] of the House of Parliament" and any and
all references to the "President" and of "Acting President" shall be changed to read "Prime
Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament
which shall continue until the Members of the regular Parliament shall have been elected and
shall have qualified. It shall be composed of the incumbent Members of the Senate and the House
of Representatives and the incumbent Members of the Cabinet who are heads of executive
departments.

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 (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the
thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He
shall initially convene the interim Parliament and shall preside over its session for the election of
the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the
thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among
the members of the interim Parliament, an interim Prime Minister, who shall be elected by a
majority vote of the members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may be delegated to him by the
incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. [Thereafter, the Vice-President, as Member of Parliament, shall immediately convene
the Parliament and shall initially preside over its session for the purpose of electing the Prime
Minister, who shall be elected by a majority vote of all its members, from among themselves.] The
duly-elected Prime Minister shall continue to exercise and perform the powers, duties and
responsibilities of the interim Prime Minister until the expiration of the term of the incumbent
President and Vice President.28

Petitioners claim that the required number of signatures of registered voters have been complied with,
i.e., the signatories to the petition constitute twelve percent (12%) of all the registered voters in the
country, wherein each legislative district is represented by at least three percent (3%) of all the registered
voters therein. Certifications allegedly executed by the respective COMELEC Election Registrars of each
municipality and city verifying these signatures were attached to the petition for initiative. The verification
was allegedly done on the basis of the list of registered voters contained in the official COMELEC list used
in the immediately preceding election.

The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to be

called for the said purpose reads:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?29

According to petitioners, the proposed amendment of Articles VI and VII would effect a more efficient,
more economical and more responsive government. The parliamentary system would allegedly ensure

144
harmony between the legislative and executive branches of government, promote greater consensus, and
provide faster and more decisive governmental action.

Sections 1 and 2 of Article XVII pertinently read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

It can be readily gleaned that the above provisions set forth different modes and procedures for proposals
for the amendment and revision of the Constitution:

1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be
proposed by –

a. Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention.

2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly
proposed by the people through initiative.

The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and
provided for their respective modes and procedures for effecting changes of the Constitution fully
cognizant of the distinction between the two concepts. Commissioner Jose E. Suarez, the Chairman of the
Committee on Amendments and Transitory Provisions, explained:

MR. SUAREZ. One more point, and we will be through.

We mentioned the possible use of only one term and that is, "amendment." However, the
Committee finally agreed to use the terms – "amendment" or "revision" when our attention was
called by the honorable Vice-President to the substantial difference in the connotation and
significance between the said terms. As a result of our research, we came up with the observations
made in the famous – or notorious – Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar, wherein he made the following distinction between "amendment"

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 and "revision" of an existing Constitution: "Revision" may involve a rewriting of the whole
Constitution. On the other hand, the act of amending a constitution envisages a change of specific
provisions only. The intention of an act to amend is not the change of the entire Constitution, but
only the improvement of specific parts or the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in
the formulation of the Article governing amendments or revisions to the new Constitution.30

Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article XVII
of the Constitution because it was their intention to reserve the power to propose a revision of the
Constitution to Congress or the constitutional convention. Stated in another manner, it was their manifest
intent that revision thereof shall not be undertaken through the system of initiative. Instead, the revision
of the Constitution shall be done either by Congress or by a constitutional convention.

It is significant to note that, originally, the provision on the system of initiative was included in Section 1
of the draft Article on Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions. The original draft provided:

SEC. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article __ Section __ of the
Constitution.31

However, after deliberations and interpellations, the members of the Commission agreed to remove the
provision on the system of initiative from Section 1 and, instead, put it under a separate provision, Section
2. It was explained that the removal of the provision on initiative from the other "traditional modes" of
changing the Constitution was precisely to limit the former (system of initiative) to amendments to the
Constitution. It was emphasized that the system of initiative should not extend to revision.

MR. SUAREZ. Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I quote
Section 2:

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 The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal was
suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not extend
to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the
proposed Article on Amendment or Revision. x x x32

The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the
system of initiative was reiterated and made clear by Commissioner Suarez in response to a suggestion of
Commissioner Felicitas Aquino:

MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4, except that
in Section 4, as it is presently drafted, there is no take-off date for the 60-day and 90-day periods.

MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing
amendments to the Constitution which would further require the process of submitting it in a
plebiscite, in which case it is not self-executing.

MR. SUAREZ. No, not unless we settle and determine the take-off period.

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a
separate section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing provision?

MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense conveyed by the
Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation
to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33

Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with respect to
the observation of Commissioner Regalado Maambong:

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1

refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla
when he made the distinction between the words "amendments" and "revision"?

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 MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."34

After several amendments, the Commission voted in favor of the following wording of Section 2:

AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE

THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER
OF REGISTERED VOTERS OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE
OF THIS RIGHT.

Sections 1 and 2, Article XVII as eventually worded read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(3) The Congress, upon a vote of three-fourths of all its Members; or

(4) A constitutional convention.

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative, upon a petition of at least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation not
only between the two terms but also between two procedures and their respective fields of application.
Ineluctably, the system of initiative under Section 2, Article XVII as a mode of effecting changes in the
Constitution is strictly limited to amendments – not to a revision – thereof.

As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as
different modes of changing the fundamental law, were cognizant of the distinction between the two
terms. They particularly relied on the distinction made by Justice Felix Antonio in his concurring opinion
in Javellana v. Executive Secretary,35the controversial decision which gave imprimatur to the 1973
Constitution of former President Ferdinand E. Marcos, as follows:

There is clearly a distinction between revision and amendment of an existing constitution.

Revision may involve a rewriting of the whole constitution. The act of amending a constitution,
on the other hand, envisages a change of only specific provisions. The intention of an act to amend

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 is not the change of the entire constitution, but only the improvement of specific parts of the
existing constitution of the addition of provisions deemed essential as a consequence of new
conditions or the elimination of parts already considered obsolete or unresponsive to the needs
of the times. The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a
completely new fundamental charter embodying new political, social and economic concepts.36

Other elucidation on the distinction between "amendment" and "revision" is enlightening. For example,
Dean Vicente G. Sinco, an eminent authority on political law, distinguished the two terms in this manner:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the
entire document. It may result in the rewriting either of the whole constitution, or the greater
portion of it, or perhaps only some of its important provisions. But whatever results the revisions
may produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether
the whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The intention rather is to improve the specific
parts of the existing constitution or to add to it provisions deemed essential on account of
changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect.37

In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the occasion to
make the distinction between the two terms with respect to Ga.L. 1945, an instrument which "amended"
the 1877 Constitution of Georgia. It explained the term "amendment:"

"Amendment" of a statute implies its survival and not destruction. It repeals or changes some
provision, or adds something thereto. A law is amended when it is in whole or in part permitted
to remain, and something is added to or taken from it, or it is in some way changed or altered to
make it more complete or perfect, or to fit it the better to accomplish the object or purpose for
which it was made, or some other object or purpose.39

On the other hand, the term "revision" was explained by the said US appellate court:

x x x When a house is completely demolished and another is erected on the same location, do you
have a changed, repaired and altered house, or do you have a new house? Some of the materials
contained in the old house may be used again, some of the rooms may be constructed the same,
but this does not alter the fact that you have altogether another or a new house. We conclude
that the instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely revised or new constitution.40

Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on the
distinction between the two terms thus:

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 An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention
and plan contemplate a re-examination of the entire document – or of provisions of the document
(which have overall implications for the entire document or for the fundamental philosophical
underpinnings of the document) – to determine how and to what extent it should be altered.
Thus, for instance, a switch from the presidential system to a parliamentary system would be a
revision because of its overall impact on the entire constitutional structure. So would a switch
from a bicameral system to a unicameral system because of its effect on other important
provisions of the Constitution.

It is thus clear that what distinguishes revision from amendment is not the quantum of change in
the document. Rather, it is the fundamental qualitative alteration that effects revision. Hence, I
must reject the puerile argument that the use of the plural form of "amendments" means that a
revision can be achieved by the introduction of a multiplicity of amendments!41

Given that revision necessarily entails a more complex, substantial and far-reaching effects on the
Constitution, the framers thereof wisely withheld the said mode from the system of initiative. It should
be recalled that it took the framers of the present Constitution four months from June 2, 1986 until
October 15, 1986 to come up with the draft Constitution which, as described by the venerable Justice
Cecilia Muñoz Palma, the President of the Constitutional Commission of 1986, "gradually and
painstakingly took shape through the crucible of sustained sometimes passionate and often exhilarating
debates that intersected all dimensions of the national life."42

Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a
product of the same extensive and intensive study and debates. Consequently, while providing for a
system of initiative where the people would directly propose amendments to the Constitution, they
entrusted the formidable task of its revision to a deliberative body, the Congress or Constituent Assembly.

The Constitution is the fundamental law of the state, containing the principles upon which the
government is founded, and regulating the division of sovereign powers, directing to what persons each
of those powers is to be confided and the manner in which it is to be exercised.43 The Philippines has
followed the American constitutional legal system in the sense that the term constitution is given a more
restricted meaning, i.e., as a written organic instrument, under which governmental powers are both
conferred and circumscribed.44

The Constitution received its force from the express will of the people. An overwhelming 16,622,111, out
of 21,785,216 votes cast during the plebiscite, or 76.30% ratified the present Constitution on February
2, 1987.45 In expressing that will, the Filipino people have incorporated therein the method and manner
by which the same can be amended and revised, and when the electorate have incorporated into the
fundamental law the particular manner in which the same may be altered or changed, then any course
which disregards that express will is a direct violation of the fundamental law.46

Further, these provisions having been incorporated in the Constitution, where the validity of a
constitutional amendment or revision depends upon whether such provisions have been complied with,
such question presents for consideration and determination a judicial question, and the courts are the
only tribunals vested with power under the Constitution to determine such question.47

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Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision," clearly
makes a differentiation not only between the two terms but also between two procedures and their
respective fields of application. On this point, the case of McFadden v. Jordan48 is instructive. In that case,
a "purported initiative amendment" (referred to as the proposed measure) to the State Constitution of
California, then being proposed to be submitted to the electors for ratification, was sought to be enjoined.
The proposed measure, denominated as "California Bill of Rights," comprised a single new article with
some 208 subsections which would repeal or substantially alter at least 15 of the 25 articles of the
California State Constitution and add at least four new topics. Among the likely effects of the proposed
measure were to curtail legislative and judicial functions, legalize gaming, completely revise the taxation
system and reduce the powers of cities, counties and courts. The proposed measure also included diverse
matters as ministers, mines, civic centers, liquor control and naturopaths.

The Supreme Court of California enjoined the submission of the proposed measure to the electors for
ratification because it was not an "amendment" but a "revision" which could only be proposed by a
convention. It held that from an examination of the proposed measure itself, considered in relation to the
terms of the California State Constitution, it was clear that the proposed initiative enactment amounted
substantially to an attempted revision, rather than amendment, thereof; and that inasmuch as the
California State Constitution specifies (Article XVIII §2 thereof) that it may be revised by means of
constitutional convention but does not provide for revision by initiative measure, the submission of the
proposed measure to the electorate for ratification must be enjoined.

As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation required
(between amendment and revision) is not merely between two words; more accurately it is between two
procedures and between their respective fields of application. Each procedure, if we follow elementary
principles of statutory construction, must be understood to have a substantial field of application, not to
be a mere alternative procedure in the same field. Each of the two words, then, must be understood to
denote, respectively, not only a procedure but also a field of application appropriate to its procedure.49

Provisions regulating the time and mode of effecting organic changes are in the nature of safety-valves –
they must not be so adjusted as to discharge their peculiar function with too great facility, lest they
become the ordinary escape-pipes of party passion; nor, on the other hand, must they discharge it with
such difficulty that the force needed to induce action is sufficient also to explode the machine. Hence, the
problem of the Constitution maker is, in this particular, one of the most difficult in our whole system, to
reconcile the requisites for progress with the requisites for safety.50

Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its
denomination, one for its revision. It purports to seek the amendment only of Articles VI and VII of the
Constitution as well as to provide transitory provisions. However, as will be shown shortly, the
amendment of these two provisions will necessarily affect other numerous provisions of the Constitution
particularly those pertaining to the specific powers of Congress and the President. These powers would
have to be transferred to the Parliament and the Prime Minister and/or President, as the case may be.
More than one hundred (100) sections will be affected or altered thereby:

1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death penalty
for compelling reasons involving heinous crimes;

2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting;

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3. All 32 Sections of Article VI on the Legislative Department;

4. All 23 Sections of Article VII on the Executive Department;

5. The following Sections of Article VIII (Judicial Department):

- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction of

various courts;

- Section 7 on the power of Congress to prescribe the qualifications of judges of lower

courts;

- Section 8 on the composition of Judicial Bar Council (JBC) which includes representatives
of Congress as ex officio members and on the power of the President to appoint the
regular members of the JBC;

- Section 9 on the power of the President to appoint the members of the Supreme Court
and judges of lower courts;

- Section 16 on duty of Supreme Court to make annual report to the President and
Congress.

6. The following Sections of Article IX (Constitutional Commissions);

- (B) Section 3 on duty of Civil Service Commission to make annual report to the President
and Congress;

- (B) Section 5 on power of Congress to provide by law for the standardization of

compensation of government officials;

- (B) Section 8 which provides in part that "no public officer shall accept, without the
consent of Congress, any present, emolument, etc. x x x"

- (C) Section 1 on the power of the President to appoint the Chairman and Commissioners
of the Commission on Elections with the consent of the Commission on Appointments;

- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress measures to
minimize election spending x x x;

- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the removal
of any officer or employee it has deputized, or the imposition of any other disciplinary
action x x x;

- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and Congress a
report on the conduct of election, plebiscite, etc.;

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 - (C) Section 5 on the power of the President, with the favorable recommendation of the
COMELEC, to grant pardon, amnesty, parole, or suspension of sentence for violation of
election laws, rules and regulations;

- (C) Section 7 which recognizes as valid votes cast in favor of organization registered
under party-list system;

- (C) Section 8 on political parties, organizations or coalitions under the party-list system;

- (D) Section 1 (2) on the power of the President to appoint the Chairman and
Commissioners of the Commission on Audit (COA) with the consent of the Commission of
Appointments;

- Section 4 on duty of the COA to make annual report to the President and Congress.

7. The following Sections of Article X (Local Government):

- Section 3 on the power of Congress to enact a local government code;

- Section 4 on the power of the President to exercise general supervision over local
government units (LGUs);

- Section 5 on the power of LGUs to create their own sources of income x x x, subject to
such guidelines as Congress may provide;

- Section 11 on the power of Congress to create special metropolitan political

subdivisions;

- Section 14 on the power of the President to provide for regional development councils
x x x;

- Section 16 on the power of the President to exercise general supervision over

autonomous regions;

- Section 18 on the power of Congress to enact organic act for each autonomous region
as well as the power of the President to appoint the representatives to the regional
consultative commission;

- Section 19 on the duty of the first Congress elected under the Constitution to pass the
organic act for autonomous regions in Muslim Mindanao and the Cordilleras.

8. The following Sections of Article XI (Accountability of Public Officers):

- Section 2 on the impeachable officers (President, Vice-President, etc.);

- Section 3 on impeachment proceedings (exclusive power of the House to initiate

complaint and sole power of the Senate to try and decide impeachment cases);

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 - Section 9 on the power of the President to appoint the Ombudsman and his deputies;

- Section 16 which provides in part that "x x x no loans or guaranty shall be granted to the
President, Vice-President, etc.

- Section 17 on mandatory disclosure of assets and liabilities by public officials including

the President, Vice-President, etc.

9. The following Sections of Article XII (National Economy and Patrimony):

- Section 2 on the power of Congress to allow, by law, small-scale utilization of natural

resources and power of the President to enter into agreements with foreign-owned
corporations and duty to notify Congress of every contract;

- Section 3 on the power of Congress to determine size of lands of public domain;

- Section 4 on the power of Congress to determine specific limits of forest lands;

- Section 5 on the power of Congress to provide for applicability of customary laws;

- Section 9 on the power of Congress to establish an independent economic and planning

agency to be headed by the President;

- Section 10 on the power of Congress to reserve to Filipino citizens or domestic

corporations(at least 60% Filipino-owned) certain areas of investment;

- Section 11 on the sole power of Congress to grant franchise for public utilities;

- Section 15 on the power of Congress to create an agency to promote viability of

cooperatives;

- Section 16 which provides that Congress shall not, except by general law, form private
corporations;

- Section 17 on the salaries of the President, Vice-President, etc. and the power of
Congress to adjust the same;

- Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights):

- Section 1 on the mandate of Congress to give highest priority to enactment of measures

that protect and enhance the right of people x x x

- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;

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 - Section 18 (6) on the duty of the Commission on Human Rights to recommend to
Congress effective measures to promote human rights;

- Section 19 on the power of Congress to provide for other cases to fall within the
jurisdiction of the Commission on Human Rights.

11. The following Sections of Article XIV (Education, Science and Technology, etc.):

- Section 4 on the power of Congress to increase Filipino equity participation in

educational institutions;

- Section 6 which provides that subject to law and as Congress may provide, the
Government shall sustain the use of Filipino as medium of official communication;

- Section 9 on the power of Congress to establish a national language commission;

- Section 11 on the power of Congress to provide for incentives to promote scientific

research.

12. The following Sections of Article XVI (General Provisions):

- Section 2 on the power of Congress to adopt new name for the country, new national
anthem, etc.;

- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the
President in times of war or national emergency declared by Congress;

- Section 11 on the power of Congress to regulate or prohibit monopolies in mass media;

- Section 12 on the power of Congress to create consultative body to advise the President
on indigenous cultural communities.

13. The following Sections of Article XVII (Amendments or Revisions):

- Section 1 on the amendment or revision of Constitution by Congress;

- Section 2 on the duty of Congress to provide for the implementation of the system of
initiative;

- Section 3 on the power of Congress to call constitutional convention to amend or revise

the Constitution.

14. All 27 Sections of Article XVIII (Transitory Provisions).

The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be
affected."51Petitioners' proposition, while purportedly seeking to amend only Articles VI and VII of the
Constitution and providing transitory provisions, will, in fact, affect, alter, replace or repeal other

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numerous articles and sections thereof. More than the quantitative effects, however, the revisory
character of petitioners' proposition is apparent from the qualitative effects it will have on the
fundamental law.

I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution, in its
strict sense, refers to a consideration of the entire constitution and the procedure for effecting such
change; while amendment refers only to particular provisions to be added to or to be altered in a
constitution.52

For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more comprehensive
differentiation of the terms:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the
entire document. It may result in the rewriting either of the whole constitution, or the greater
portion of it, or perhaps only some of its important provisions. But whatever results the revisions
may produce, the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether
the whole document should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The intention rather is to improve the specific
parts of the existing constitution or to add to it provisions deemed essential on account of
changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect.53

A change in the form of government from bicameral-presidential to unicameral-parliamentary, following

the above distinction, entails a revision of the Constitution as it will involve "alteration of different
portions of the entire document" and "may result in the rewriting of the whole constitution, or the greater
portion of it, or perhaps only some of its important provisions."

More importantly, such shift in the form of government will, without doubt, fundamentally change the
basic plan and substance of the present Constitution. The tripartite system ordained by our fundamental
law divides governmental powers into three distinct but co-equal branches: the legislative, executive and
judicial. Legislative power, vested in Congress which is a bicameral body consisting of the House of
Representatives and the Senate, is the power to make laws and to alter them at discretion. Executive
power, vested in the President who is directly elected by the people, is the power to see that the laws are
duly executed and enforced. Judicial power, vested in the Supreme Court and the lower courts, is the
power to construe and apply the law when controversies arise concerning what has been done or omitted
under it. This separation of powers furnishes a system of checks and balances which guards against the
establishment of an arbitrary or tyrannical government.

Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved as

there is a fusion between the executive and legislative powers. Essentially, the President becomes a mere
"symbolic head of State" while the Prime Minister becomes the head of government who is elected, not
by direct vote of the people, but by the members of the Parliament. The Parliament is a unicameral body

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whose members are elected by legislative districts. The Prime Minister, as head of government, does not
have a fixed term of office and may only be removed by a vote of confidence of the Parliament. Under
this form of government, the system of checks and balances is emasculated.

Considering the encompassing scope and depth of the changes that would be effected, not to mention
that the Constitution's basic plan and substance of a tripartite system of government and the principle of
separation of powers underlying the same would be altered, if not entirely destroyed, there can be no
other conclusion than that the proposition of petitioners Lambino, et al. would constitute a revision of
the Constitution rather than an amendment or "such an addition or change within the lines of the original
instrument as will effect an improvement or better carry out the purpose for which it was framed."54 As
has been shown, the effect of the adoption of the petitioners' proposition, rather than to "within the lines
of the original instrument" constitute "an improvement or better carry out the purpose for which it was
framed," is to "substantially alter the purpose and to attain objectives clearly beyond the lines of the
Constitution as now cast."55

To paraphrase McFadden, petitioners' contention that any change less than a total one is amendatory
would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. A case might,
conceivably, be presented where the question would be occasion to undertake to define with nicety the
line of demarcation; but we have no case or occasion here.

As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary system
would be a revision because of its overall impact on the entire constitutional structure. So would a switch
from a bicameral system to a unicameral system because of its effect on other important provisions of
the Constitution. It is thus clear that what distinguishes revision from amendment is not the quantum of
change in the document. Rather, it is the fundamental qualitative alteration that effects revision."56

The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being in
truth and in fact a proposal for the revision thereof, is barred from the system of initiative upon any legally
permissible construction of Section 2, Article XVII of the Constitution.

The Petition for Initiative on

Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance

Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative and
that COMELEC Resolution No. 2300, as it prescribed rules and regulations on the conduct of initiative on
amendments to the Constitution, is valid, still, the petition for initiative on amendments to the
Constitution must be dismissed for being insufficient in form and substance.

Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the following:

1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

2. The proposition;

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 3. The reason or reasons therefor;

4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and

6. An abstract or summary proposition in not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition.

Section 7 thereof requires that the signatures be verified in this wise:

SEC. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the basis
of the registry list of voters, voters' affidavits and voters' identification cards used in the
immediately preceding election.

The law mandates upon the election registrar to personally verify the signatures. This is a solemn and
important duty imposed on the election registrar which he cannot delegate to any other person, even
to barangay officials. Hence, a verification of signatures made by persons other than the election
registrars has no legal effect.

In patent violation of the law, several certifications submitted by petitioners showed that the verification
of signatures was made, not by the election registrars, but by barangay officials. For example, the
certification of the election officer in Lumbatan, Lanao del Sur reads in full:

LOCAL ELECTION OFFICER'S CERTIFICATION57

THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this
City/Municipality, as attested to by two (2) witnesses from the same Barangays, which is part of
the 2ndLegislative District of the Province of Lanao del Sur, the names appearing on the attached
signature sheets relative to the proposed initiative on Amendments to the 1987 Constitution, are
those of bonafide resident of the said Barangays and correspond to the names found in the
official list of registered voters of the Commission on Elections and/or voters' affidavit and/or
voters' identification cards.

It is further certified that the total number of signatures of the registered voters for the
City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed signatures sheets is
ONE THOUSAND ONE HUNDRED EIGHTY (1,180).

April 2, 2006

IBRAHIM M. MACADATO
Election Officer

(Underscoring supplied)

The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim
Mindanao (ARMM) alone is shown by the certifications, similarly worded as above-quoted, of the election

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registrars of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin Sinsuat,
Maguindanao;60 Matanog, Maguindanao;61 Parang, Maguindanao;62 Kabantalan, Maguindanao;63 Upi,
Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan, Maguindanao;67 Buluan,
68 69
Maguindanao; Datu Paglas, Maguindanao; Datu Piang, Maguindanao;70 Shariff Aguak,
71 72 73
Maguindanao; Pagalungan, Maguindanao; Talayan, Maguindanao; Gen. S.K. Pendatun,
Maguindanao;74 Mamasapano, Maguindanao;75 Talitay, Maguindanao;76 Guindulungan,
Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay, Maguindanao;79 Pagagawan,
Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83Maimbung, Sulu;84 Hadji
Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Sulu;88Luuk, Sulu;89 Panamao,
Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96

Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election registrar, and
by no one else, including the barangay officials. The foregoing certifications submitted by petitioners,
instead of aiding their cause, justify the outright dismissal of their petition for initiative. Because of the
illegal verifications made by barangay officials in the above-mentioned legislative districts, it necessarily
follows that the petition for initiative has failed to comply with the requisite number of signatures, i.e., at
least twelve percent (12%) of the total number of registered voters, of which every legislative district must
be represented by at least three percent (3%) of the registered voters therein.

Petitioners cannot disclaim the veracity of these damaging certifications because they themselves
submitted the same to the COMELEC and to the Court in the present case to support their contention that
the requirements of RA 6735 had been complied with and that their petition for initiative is on its face
sufficient in form and substance. They are in the nature of judicial admissions which are conclusive and
binding on petitioners.97 This being the case, the Court must forthwith order the dismissal of the petition
for initiative for being, on its face, insufficient in form and substance. The Court should make the
adjudication entailed by the facts here and now, without further proceedings, as it has done in other
cases.98

It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying
on Santiago that RA 6735 is inadequate to cover initiative to the Constitution, this cannot be used to
legitimize its refusal to heed the people's will. The fact that there is no enabling law should not prejudice
the right of the sovereign people to propose amendments to the Constitution, which right has already
been exercised by 6,327,952 voters. The collective and resounding act of the particles of sovereignty must
not be set aside. Hence, the COMELEC should be ordered to comply with Section 4, Article XVII of the 1987
Constitution via a writ of mandamus. The submission of petitioners, however, is unpersuasive.

Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the persons
of a public duty most especially when mandated by the Constitution.99 However, under Section 3, Rule 65
of the 1997 Rules of Court, for a petition for mandamus to prosper, it must be shown that the subject of
the petition is a ministerial act or duty and not purely discretionary on the part of the board, officer or
person, and that petitioner has a well-defined, clear and certain right to warrant the grant thereof. A
purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a
public official and gives him the right to decide how or when the duty should be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires
neither the exercise of an official discretion nor judgment.100

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To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to
warrant the grant thereof.101 In this case, petitioners failed to establish their right to a writ
of mandamus as shown by the foregoing disquisitions.

Remand of the Case to the

COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied with
the requisite number of signatures of at least twelve percent (12%) of the total number of registered
voters, of which every legislative district must be represented by at least three percent (3%) of the
registered voters therein, involves contentious facts. The dissenting opinion cites the petitioners' claim
that they have complied with the same while the oppositors-intervenors have vigorously refuted this
claim by alleging, inter alia, that the signatures were not properly verified or were not verified at all. Other
oppositors-intervenors have alleged that the signatories did not fully understand what they have signed
as they were misled into signing the signature sheets.

According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance with
the requirements of RA 6735 on initiative and its implementing rules is a question that should be resolved
by the COMELEC at the first instance. It thus remands the case to the COMELEC for further proceedings.

To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA 6735, as
well as in COMELEC Resolution No. 2300, granting that it is valid to implement the former statute, that
authorizes the COMELEC to conduct any kind of hearing, whether full-blown or trial-type hearing,
summary hearing or administrative hearing, on a petition for initiative.

Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under the
control and supervision of the Commission in accordance with Article III hereof." Pertinently, Sections 30,
31 and 32 of Article III of the said implementing rules provide as follows:

Sec. 30. Verification of signatures. – The Election Registrar shall verify the signatures on the basis
of the registry list of voters, voters' affidavits and voters' identification cards used in the
immediately preceding election.

Sec. 31. Determination by the Commission. – The Commission shall act on the findings of the
sufficiency or insufficiency of the petition for initiative or referendum.

If it should appear that the required number of signatures has not been obtained, the petition
shall be deemed defeated and the Commission shall issue a declaration to that effect.

If it should appear that the required number of signatures has been obtained, the Commission
shall set the initiative or referendum in accordance with the succeeding sections.

Sec. 32. Appeal. – The decision of the Commission on the findings of the sufficiency and
insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court
within thirty (30) days from notice hereof.

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Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any kind of
hearing to receive any evidence for or against the sufficiency of the petition for initiative. Rather, the
foregoing rules require of the COMELEC to determine the sufficiency or insufficiency of the petition for
initiative on its face. And it has already been shown, by the annexes submitted by the petitioners
themselves, their petition is, on its face, insufficient in form and substance. The remand of the case to the
COMELEC for reception of evidence of the parties on the contentious factual issues is, in effect, an
amendment of the abovequoted rules of the COMELEC by this Court which the Court is not empowered
to do.

The Present Petition Presents a

Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution

Political questions refer to those questions which, under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of government.102 A political question has two aspects: (1) those matters
that are to be exercised by the people in their primary political capacity; and (2) matters which have been
specifically designated to some other department or particular office of the government, with
discretionary power to act.103

In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice Reynato S.
Puno explained the doctrine of political question vis-à-vis the express mandate of the present Constitution
for the courts to determine whether or not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the Government:

In the Philippine setting, there is more compelling reason for courts to categorically reject the
political question defense when its interposition will cover up abuse of power. For Section 1,
Article VIII of our Constitution was intentionally cobbled to empower courts "... 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." This power is new
and was not granted to our courts in the 1935 and 1972 Constitutions. It was also not xeroxed
from the US Constitution or any foreign state constitution. The CONCOM [Constitutional
Commission] granted this enormous power to our courts in view of our experience under martial
law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the
CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive
and the Legislative departments of government. In cases involving the proclamation of martial
law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the
government can no longer invoke the political question defense.

xxxx

To a great degree, it diminished its [political question doctrine] use as a shield to protect other
abuses of government by allowing courts to penetrate the shield with new power to review acts

161
 of any branch or instrumentality of the government ". . . to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction."

Even if the present petition involves the act, not of a governmental body, but of purportedly more than
six million registered voters who have signified their assent to the proposal to amend the Constitution,
the same still constitutes a justiciable controversy, hence, a non-political question. There is no doubt that
the Constitution, under Article XVII, has explicitly provided for the manner or method to effect
amendments thereto, or revision thereof. The question, therefore, of whether there has been compliance
with the terms of the Constitution is for the Court to pass upon.105

In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised jurisdiction
over the petition questioning the result of the general election holding that "an examination of the
decisions shows that the courts have almost uniformly exercised the authority to determine the validity
of the proposal, submission, or ratification of constitutional amendments." The cases cited were Dayton
v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among other cases.

There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them."111 However, I find to be tenuous the
asseveration that "the argument that the people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty in its head. At the very least, the submission
constricts the democratic space for the exercise of the direct sovereignty of the people."112 In effect, it is
theorized that despite the unambiguous text of Section 2, Article XVII of the Constitution withholding the
power to revise it from the system of initiative, the people, in their sovereign capacity, can conveniently
disregard the said provision.

I strongly take exception to the view that the people, in their sovereign capacity, can disregard the
Constitution altogether. Such a view directly contravenes the fundamental constitutional theory that
while indeed "the ultimate sovereignty is in the people, from whom springs all legitimate authority";
nonetheless, "by the Constitution which they establish, they not only tie up the hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this fundamental law."113 The Constitution,
it should be remembered, "is the protector of the people, placed on guard by them to save the rights of
the people against injury by the people."114 This is the essence of constitutionalism:

Through constitutionalism we placed limits on both our political institutions and ourselves, hoping
that democracies, historically always turbulent, chaotic and even despotic, might now become
restrained, principled, thoughtful and just. So we bound ourselves over to a law that we made
and promised to keep. And though a government of laws did not displace governance by men, it
did mean that now men, democratic men, would try to live by their word.115

Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to amend
to the Constitution, and does not extend to its revision. The Filipino people have bound themselves to
observe the manner and method to effect the changes of the Constitution. They opted to limit the exercise
of the right to directly propose amendments to the Constitution through initiative, but did not extend the
same to the revision thereof. The petition for initiative, as it proposes to effect the revision thereof,
contravenes the Constitution. The fundamental law of the state prescribes the limitations under which
the electors of the state may change the same, and, unless such course is pursued, the mere fact that a
majority of the electors are in favor of a change and have so expressed themselves, does not work a

162
change. Such a course would be revolutionary, and the Constitution of the state would become a mere
matter of form.116

The very term Constitution implies an instrument of a permanent and abiding nature, and the provisions
contained therein for its revision indicated the will of the people that the underlying principles upon which
it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding
nature.117

The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of the
Constitution. The Court is mandated to ensure that these safety valves embodied in the Constitution to
guard against improvident and hasty changes thereof are not easily trifled with. To be sure, by having
overwhelmingly ratified the Constitution, the Filipino people believed that it is "a good Constitution" and
in the words of the learned Judge Cooley:

x x x should be beyond the reach of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the whim of
the people, or the thought evolved in excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be allowed efficiency. Changes in government
are to be feared unless the benefit is certain. As Montaign says: "All great mutations shake and
disorder a state. Good does not necessarily succeed evil; another evil may succeed and worse.118

Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I have
approached and grappled with them with full appreciation of the responsibilities involved in the present
case, and have given to its consideration the earnest attention which its importance demands. I have
sought to maintain the supremacy of the Constitution at whatever hazard. I share the concern of Chief
Justice Day in Koehler v. Hill:119"it is for the protection of minorities that constitutions are framed.
Sometimes constitutions must be interposed for the protection of majorities even against themselves.
Constitutions are adopted in times of public repose, when sober reason holds her citadel, and are
designed to check the surging passions in times of popular excitement. But if courts could be coerced by
popular majorities into a disregard of their provisions, constitutions would become mere 'ropes of sand,'
and there would be an end of social security and of constitutional freedom. The cause of temperance can
sustain no injury from the loss of this amendment which would be at all comparable to the injury to
republican institutions which a violation of the constitution would inflict. That large and respectable class
of moral reformers which so justly demands the observance and enforcement of law, cannot afford to
take its first reformatory step by a violation of the constitution. How can it consistently demand of others
obedience to a constitution which it violates itself? The people can in a short time re-enact the
amendment. In the manner of a great moral reform, the loss of a few years is nothing. The constitution is
the palladium of republican freedom. The young men coming forward upon the stage of political action
must be educated to venerate it; those already upon the stage must be taught to obey it. Whatever
interest may be advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no
sacrilegious hand must be laid upon the constitution."120

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No.
174299.

ROMEO J. CALLEJO, SR.

Associate Justice

163
____________________

G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE,
JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR
BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN
MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO,
RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE
CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK
FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE
MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE
TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS, Respondents.

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act
No. 95221(RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of
nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States
parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968
(Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.

164
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February
1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens,
taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s waters landward
of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and
national security, contravening the country’s nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions.13

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only results
in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To
buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded
and included – its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition’s
compliance with the case or controversy requirement for judicial review grounded on petitioners’ alleged
lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the country’s compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the country’s security, environment and economic
interests or relinquish the Philippines’ claim over Sabah.

Respondents also question the normative force, under international law, of petitioners’ assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found
within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily –

1. Whether petitioners possess locus standi to bring this suit; and

165
 2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and
(2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On
the merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the
petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned
by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the case which
undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the
peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct
and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship
standing.17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance
of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners.18

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of
other branches of government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such relevance in the
life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass
upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute
sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental

166
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory" 21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at
the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that
from the Treaty of Paris’ technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated
in the Treaty of Paris.22

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating the
conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’
graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out
specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest
of the international community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic
zone (Article 56) and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within
the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to
be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity
with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular
area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the
archipelago."24

167
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology, States acquire (or conversely,
lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to
delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law.26

RA 9522’s Use of the Framework

of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty
Over these Areas

Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from
the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial
waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the
baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law,
coupled with a reading of the text of RA 9522 and its congressional deliberations, vis-à-vis the Philippines’
obligations under UNCLOS III, belie this view.1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed
the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize
the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s
limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory
renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522
is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29

Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
into account the taking into account
Treaty of Paris’ UNCLOS III (in square
delimitation (in nautical miles)
square nautical miles)
Internal or
archipelagic
waters 166,858 171,435

168
 Territorial Sea 274,136 32,106
Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines
that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to

169
text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough
Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent
with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines
shall not depart to any appreciable extent from the general configuration of the archipelago." Second,
Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles,"
save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline
of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest
basepoint will inevitably "depart to an appreciable extent from the general configuration of the
archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which states: "The drawing of such
baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So
sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as
our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the
orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa
itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the
Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits.1avvphi1 The need
to shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:

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[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of
its maritime zones including the extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical
deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is
140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from
the baselines system. This will enclose an additional 2,195 nautical miles of water.

3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic
survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down
to Palawan were later found to be located either inland or on water, not on low-water line and
drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of the
Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above water at high tide," such as portions
of the KIG, qualifies under the category of "regime of islands," whose islands generate their own applicable
maritime zones.37

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open
the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in
this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory
of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion
and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
"converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent
and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage

171
rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation
of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water
lying landward of the baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed
and subsoil. –

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of
their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed
and subsoil, and the resources contained therein.

xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects
affect the status of the archipelagic waters, including the sea lanes, or the exercise by the
archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and
the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the international
law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State
can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance
with customary international law without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal States
which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’

172
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of
their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial
sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47

Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles

and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article
II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable
constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone
up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to
pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’ reading
plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe
for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens
the country’s case in any international dispute over Philippine maritime space. These are consequences
Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of
the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national
interest.

WHEREFORE, we DISMISS the petition.

173
SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

1
Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic
Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes."

2
Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."

174
3
The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as an
archipelagic State:

"WHEREAS, all the waters around, between, and connecting the various islands of the
Philippine archipelago, irrespective of their width or dimensions, have always been
considered as necessary appurtenances of the land territory, forming part of the inland
waters of the Philippines."

4
One of the four conventions framed during the first United Nations Convention on the Law of
the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10 September 1964.

5
UNCLOS III entered into force on 16 November 1994.

6
The Philippines signed the treaty on 10 December 1982.

7
Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within
such baselines are included the main islands and an area in which the ratio of the area of
the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3
per cent of the total number of baselines enclosing any archipelago may exceed that
length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago. (Emphasis supplied)

xxxx

8
UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is
mandated in Article 4, Annex II: "Where a coastal State intends to establish, in accordance with
article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit
particulars of such limits to the Commission along with supporting scientific and technical data as
soon as possible but in any case within 10 years of the entry into force of this Convention for that
State. The coastal State shall at the same time give the names of any Commission members who
have provided it with scientific and technical advice." (Underscoring supplied)

In a subsequent meeting, the States parties agreed that for States which became bound
by the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be
counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met
the deadline.

9
Rollo, p. 34.

175
10
Which provides: "The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines."

11
Entered into between the Unites States and Spain on 10 December 1898 following the
conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United
States "the archipelago known as the Philippine Islands" lying within its technical description.

12
The Treaty of Washington, between Spain and the United States (7 November 1900),
transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain
Convention (2 January 1930) demarcating boundary lines between the Philippines and North
Borneo.

13
Article II, Section 7, Section 8, and Section 16.

14
Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the
Constitution.

15
Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

16
Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303
(1976).

17
Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v.
Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J.,
concurring). The two other factors are: "the character of funds or assets involved in the
controversy and a clear disregard of constitutional or statutory prohibition." Id.

18
. Rollo, pp. 144-147.

19
See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a
petition for certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not
for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25
January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic
Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and
prohibition declaring unconstitutional portions of Republic Act No. 9189).

20
See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R.
No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine
Senate and nullifying the Senate contempt order issued against petitioner).

21
Rollo, p. 31.

176
22
Respondents state in their Comment that petitioners’ theory "has not been accepted or
recognized by either the United States or Spain," the parties to the Treaty of Paris. Respondents
add that "no State is known to have supported this proposition." Rollo, p. 179.

23
UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner
Magallona himself defined as "a body of treaty rules and customary norms governing the uses of
the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x
x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997]) (Italicization supplied).

24
Following Article 47 (1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within
such baselines are included the main islands and an area in which the ratio of the area of
the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis
supplied)

25
Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.

26
The last paragraph of the preamble of UNCLOS III states that "matters not regulated by this
Convention continue to be governed by the rules and principles of general international law."

27
Rollo, p. 51.

28
Id. at 51-52, 64-66.

29
Based on figures respondents submitted in their Comment (id. at 182).

30
Under Article 74.

31
See note 7.

32
Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

33
KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123
nautical west of Zambales.

34
Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

35
Rollo, p. 159.

36
Section 2, RA 9522.

37
Article 121 provides: "Regime of islands. —

1. An island is a naturally formed area of land, surrounded by water, which is above water
at high tide.

177
 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have
no exclusive economic zone or continental shelf."

38
Rollo, pp. 56-57, 60-64.

39
Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters"
separately from "territorial sea." Under UNCLOS III, an archipelagic State may have internal waters
– such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS
III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the establishment of a straight baseline
in accordance with the method set forth in article 7 has the effect of enclosing as internal
waters areas which had not previously been considered as such, a right of innocent passage as
provided in this Convention shall exist in those waters." (Emphasis supplied)

40
Mandated under Articles 52 and 53 of UNCLOS III:

Article 52. Right of innocent passage. —

1. Subject to article 53 and without prejudice to article 50, ships of all States
enjoy the right of innocent passage through archipelagic waters, in accordance
with Part II, section 3.

2. The archipelagic State may, without discrimination in form or in fact among

foreign ships, suspend temporarily in specified areas of its archipelagic waters the
innocent passage of foreign ships if such suspension is essential for the protection
of its security. Such suspension shall take effect only after having been duly
published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage. —

1. An archipelagic State may designate sea lanes and air routes thereabove,
suitable for the continuous and expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such
sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with this
Convention of the rights of navigation and overflight in the normal mode solely
for the purpose of continuous, expeditious and unobstructed transit between one
part of the high seas or an exclusive economic zone and another part of the high
seas or an exclusive economic zone.

178
 4. Such sea lanes and air routes shall traverse the archipelagic waters and the
adjacent territorial sea and shall include all normal passage routes used as routes
for international navigation or overflight through or over archipelagic waters and,
within such routes, so far as ships are concerned, all normal navigational
channels, provided that duplication of routes of similar convenience between the
same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous axis
lines from the entry points of passage routes to the exit points. Ships and aircraft
in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to
either side of such axis lines during passage, provided that such ships and aircraft
shall not navigate closer to the coasts than 10 per cent of the distance between
the nearest points on islands bordering the sea lane.

6. An archipelagic State which designates sea lanes under this article may also
prescribe traffic separation schemes for the safe passage of ships through narrow
channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due

publicity thereto, substitute other sea lanes or traffic separation schemes for any
sea lanes or traffic separation schemes previously designated or prescribed by it.

8. Such sea lanes and traffic separation schemes shall conform to generally
accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic

separation schemes, an archipelagic State shall refer proposals to the competent
international organization with a view to their adoption. The organization may
adopt only such sea lanes and traffic separation schemes as may be agreed with
the archipelagic State, after which the archipelagic State may designate, prescribe
or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and the
traffic separation schemes designated or prescribed by it on charts to which due
publicity shall be given.

11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and
traffic separation schemes established in accordance with this article.

12. If an archipelagic State does not designate sea lanes or air routes, the right of
archipelagic sea lanes passage may be exercised through the routes normally
used for international navigation. (Emphasis supplied)

41
Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO ESTABLISH
THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE
RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE RIGHT OF

179
ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND
PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN."

42
The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage. —

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the
right of innocent passage through the territorial sea. (Emphasis supplied)

Article 19. Meaning of innocent passage. —

1. Passage is innocent so long as it is not prejudicial to the peace, good order or

security of the coastal State. Such passage shall take place in conformity with this
Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace,

good order or security of the coastal State if in the territorial sea it engages in any
of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity
or political independence of the coastal State, or in any other manner in
violation of the principles of international law embodied in the Charter of
the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence
or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of

the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person

contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

180
 (k) any act aimed at interfering with any systems of communication or
any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passage. —

1. The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of all or any of the
following:

(a) the safety of navigation and the regulation of maritime traffic;

(b) the protection of navigational aids and facilities and other facilities or
installations;

(c) the protection of cables and pipelines;

(d) the conservation of the living resources of the sea;

(e) the prevention of infringement of the fisheries laws and regulations

of the coastal State;

(f) the preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof;

(g) marine scientific research and hydrographic surveys;

(h) the prevention of infringement of the customs, fiscal, immigration or

sanitary laws and regulations of the coastal State.

2. Such laws and regulations shall not apply to the design, construction, manning
or equipment of foreign ships unless they are giving effect to generally accepted
international rules or standards.

3. The coastal State shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of innocent passage through the territorial
sea shall comply with all such laws and regulations and all generally accepted
international regulations relating to the prevention of collisions at sea.

43
The right of innocent passage through the territorial sea applies only to ships and not to aircrafts
(Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory
of a State arises only under an international agreement. In contrast, the right of innocent passage
through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).

181
44
Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces war as
an instrument of national policy, adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations." (Emphasis supplied)

45
"Archipelagic sea lanes passage is essentially the same as transit passage through straits" to
which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The
Law of the Sea 127 (1999).

46
Falling under Article 121 of UNCLOS III (see note 37).

47
Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone. —

1. In the exclusive economic zone, all States, whether coastal or land-locked,

enjoy, subject to the relevant provisions of this Convention, the freedoms
referred to in article 87 of navigation and overflight and of the laying of submarine
cables and pipelines, and other internationally lawful uses of the sea related to
these freedoms, such as those associated with the operation of ships, aircraft and
submarine cables and pipelines, and compatible with the other provisions of this
Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.

xxxx

Beyond the exclusive economic zone, other States enjoy the freedom of the high seas,
defined under UNCLOS III as follows:

Article 87. Freedom of the high seas. —

1. The high seas are open to all States, whether coastal or land-locked. Freedom
of the high seas is exercised under the conditions laid down by this Convention
and by other rules of international law. It comprises, inter alia, both for coastal
and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations

permitted under international law, subject to Part VI;

182
 (e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests
of other States in their exercise of the freedom of the high seas, and also with due
regard for the rights under this Convention with respect to activities in the Area.

48
See note 13.

49
Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546, 580-581
(1997).

50
G.R. No. 101083, 30 July 1993, 224 SCRA 792.

51
"The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."

52
"The State shall protect the rights of subsistence fishermen, especially of local communities, to
the preferential use of the communal marine and fishing resources, both inland and offshore. It
shall provide support to such fishermen through appropriate technology and research, adequate
financial, production, and marketing assistance, and other services. The State shall also protect,
develop, and conserve such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources."

53
This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended
continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).

54
Rollo, pp. 67-69.

55
Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an area in which the ratio of the area of
the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1." (Emphasis
supplied) in the Area.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

VELASCO, JR., J.:

I concur with the ponencia and add the following complementary arguments and observations:

183
A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional
provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in such
a way as to leave no doubt in the mind of the Court.1 In the same token, if a law runs directly afoul of the
Constitution, the Court’s duty on the matter should be clear and simple: Pursuant to its judicial power and
as final arbiter of all legal questions,2 it should strike such law down, however laudable its purpose/s might
be and regardless of the deleterious effect such action may carry in its wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to
Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic Baselines Of
The Philippines and for Other Purposes." For perspective, RA 3046, "An Act to Define the Baselines of the
Territorial Sea of the Philippines, was enacted in 1961 to comply with the United Nations Convention on
the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to amend typographical errors
relating to coordinates in RA 3046. The latter law also added a provision asserting Philippine sovereignty
over Sabah.

As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the process the
old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in response to the country’s
commitment to conform to some 1982 Law of the Sea Convention (LOSC) or UNCLOS III provisions to
define new archipelagic baselines through legislation, the Philippines having signed3 and eventually
ratified4 this multilateral treaty. The Court can take judicial notice that RA 9522 was registered and
deposited with the UN on April 4, 2009.

As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for the
sovereignty of all States, "a legal order for the seas and oceans which will facilitate international
communication, and will promote the peaceful uses of the seas and oceans." One of the measures to
attain the order adverted to is to have a rule on baselines. Of particular relevance to the Philippines, as
an archipelagic state, is Article 47 of UNCLOS III which deals with baselines:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of
the outermost islands and drying reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per cent of
the total number of baselines enclosing any archipelago may exceed that length, up to a maximum
length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.

xxxx

9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates
and shall deposit a copy of each such chart or list with the Secretary-General of the United
Nations.6 (Emphasis added.)

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To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their
implementation, undermine its sovereign and/or jurisdictional interests over what it considers its
territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the following
"Declaration" to said treaty:

The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982 United
Nations Convention on the Law of the Sea, it does so with the understandings embodied in this
declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the sovereign
rights of the [RP] under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the United
States of America [USA], under and arising out of the Treaty of Paris between Spain and the United States
of America of December 10, 1898, and the Treaty of Washington between the [USA] and Great Britain of
January 2, 1930;

xxxx

Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any territory over
which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto;

The Convention shall not be construed as amending in any manner any pertinent laws and Presidential
Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and reserves the right
and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions
of the Philippine Constitution;

The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the
sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority
to enact legislation to protect its sovereignty independence and security;

The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of
the Philippines, and removes straits connecting these waters with the economic zone or high sea from the
rights of foreign vessels to transit passage for international navigation.8 (Emphasis added.)

Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates Section
1, Article I of the 1987 Constitution on national territory which states:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The waters around, between, and connecting the islands
of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the
Philippines. (Emphasis supplied.)

185
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission which
drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in substance a copy
of its 1973 counterpart."9 Art. I of the 1973 Constitution reads:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine areas over
which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of
the Philippines. (Emphasis added.)

As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence of
their respective provisions, assert the country’s adherence to the "archipelagic principle." Both
constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2)
other territories belonging to the Philippines. So what or where is Philippine archipelago contemplated in
the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the following wise:

Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973
Constitution. x x x

xxxx

x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one must
look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.

Section 1 of the first draft submitted by the Committee on National Territory almost literally reproduced
Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft designated the
Philippines not simply as the Philippines but as "the Philippine archipelago.10 In response to the criticism
that the definition was colonial in tone x x x, the second draft further designated the Philippine
archipelago, as the historic home of the Filipino people from its beginning.11

After debates x x x, the Committee reported out a final draft, which became the initially approved version:
"The national territory consists of the Philippine archipelago which is the ancestral home of the Filipino
people and which is composed of all the islands and waters embraced therein…"

What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by Delegate
Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero answered that it
was the area delineated in the Treaty of Paris. He said that objections to the colonial implication of
mentioning the Treaty of Paris was responsible for the omission of the express mention of the Treaty of
Paris.

Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the
expanse of this archipelago. It said:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge or
giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside this
giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of Luzon to

186
the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of over 300 miles.
From the west coast of Luzon to the western boundary of this giant rectangle in the China sea, there is a
distance of over 150 miles.

When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings
McDuffie Law, it in reality announced to the whole world that it was turning over to the Government of
the Philippine Islands an archipelago (that is a big body of water studded with islands), the boundaries of
which archipelago are set forth in Article III of the Treaty of Paris. It also announced to the whole world
that the waters inside the giant rectangle belong to the Philippines – that they are not part of the high
seas.

When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was ceding
to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines specified in the
treaty, and that the archipelago consisted of the huge body of water inside the boundaries and the islands
inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of the
modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention of
January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle and
Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes group[,
being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris. In literal
terms, therefore, the Batanes islands would come not under the Philippine archipelago but under the
phrase "all other territories belong to the Philippines."12x x x (Emphasis added.)

From the foregoing discussions on the deliberations of the provisions on national territory, the following
conclusion is abundantly evident: the "Philippine archipelago" of the 1987 Constitution is the same
"Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn corresponds to the
territory defined and described in Art. 1 of the 1935 Constitution,13 which pertinently reads:

Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded
between the [US] and Spain on the tenth day of December, [1898], the limits of which are set forth in
Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the
[US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the
nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past,"14 it is at
once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national
territory.

On the other hand, the phrase "all other territories over which the Philippines has sovereignty or
jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories belonging
to the Philippines by historic right or legal title"15 found in the 1973 Constitution, covers areas linked to
the Philippines with varying degrees of certainty.16 Under this category would fall: (a) Batanes, which then
1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee on National Territory,
described as belonging to the Philippines in all its history;17 (b) Sabah, over which a formal claim had been
filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over
which the Philippines had filed a claim or might acquire in the future through recognized modes of

187
acquiring territory.18 As an author puts it, the deletion of the words "by historic right or legal title" is not
to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise
sovereignty.19

Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken down
as unconstitutional for the reasons that it deprives the Philippines of what has long been established as
part and parcel of its national territory under the Treaty of Paris, as supplemented by the aforementioned
1900 Treaty of Washington or, to the same effect, revises the definition on or dismembers the national
territory. Pushing their case, petitioners argue that the constitutional definition of the national territory
cannot be remade by a mere statutory act.20 As another point, petitioners parlay the theory that the law
in question virtually weakens the country’s territorial claim over the Kalayaan Island Group (KIG) and
Sabah, both of which come under the category of "other territories" over the Philippines has sovereignty
or jurisdiction. Petitioners would also assail the law on grounds related to territorial sea lanes and internal
waters transit passage by foreign vessels.

It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as
defined in the Constitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC,
which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the
ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine coast from which
baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime
zones.21 The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the
UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not
surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting
order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that
under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from
having a dismembering effect, then, RA 9522 has in a limited but real sense increased the country’s
maritime boundaries. How this situation comes about was extensively explained by then Minister of State
and head of the Philippine delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22 on the
concurrence of the Batasang Pambansa with the LOSC:

xxxx

Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside the
archipelagic base lines become a unified whole and the waters between the islands which formerly were
regarded by international law as open or international seas now become waters under the complete
sovereignty of the Filipino people. In this light there would be an additional area of 141,800 square
nautical miles inside the base lines that will be recognized by international law as Philippine waters,
equivalent to 45,351,050 hectares. These gains in the waters of the sea, 45,211,225 hectares outside the
base lines and 141,531,000 hectares inside the base lines, total 93,742,275 hectares as a total gain in the
waters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of
the legal unification of land and waters of the archipelago in the light of international law, but also in
terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the
Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in the
Convention by approving the resolution before us today.

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May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that
archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the Sea.

Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough to
encompass RA 9522’s definition of the archipelagic baselines. To reiterate, the laying down of baselines is
not a mode of acquiring or asserting ownership a territory over which a state exercises sovereignty. They
are drawn for the purpose of defining or establishing the maritime areas over which a state can exercise
sovereign rights. Baselines are used for fixing starting point from which the territorial belt is measured
seawards or from which the adjacent maritime waters are measured. Thus, the territorial sea, a marginal
belt of maritime waters, is measured from the baselines extending twelve (12) nautical miles
outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) "shall not
extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is
measured."24 Most important to note is that the baselines indicated under RA 9522 are derived from Art.
47 of the 1982 LOSC which was earlier quoted.

Since the 1987 Constitution’s definition of national territory does not delimit where the Philippine’s
baselines are located, it is up to the political branches of the government to supply the deficiency. Through
Congress, the Philippines has taken an official position regarding its baselines to the international
community through RA 3046,25 as amended by RA 544626 and RA 9522. When the Philippines deposited a
copy of RA 9522 with the UN Secretary General, we effectively complied in good faith with our obligation
under the 1982 LOSC. A declaration by the Court of the constitutionality of the law will complete the bona
fides of the Philippines vis-a-vis the law of the sea treaty.

It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing impact on
the signatory states’ jurisdiction and even their sovereignty. But this actuality, without more, can hardly
provide a justifying dimension to nullify the complying RA 9522. As held by the Court in Bayan Muna v.
Romulo,27 treaties and international agreements have a limiting effect on the otherwise encompassing
and absolute nature of sovereignty. By their voluntary acts, states may decide to surrender or waive some
aspects of their sovereignty. The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or reciprocal undertaking. On the premise that the Philippines has
adopted the generally accepted principles of international law as part of the law of the land, a portion of
sovereignty may be waived without violating the Constitution.

As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder. Pacta
sunt servanda, a basic international law postulate that "every treaty in force is binding upon the parties
to it and must be performed by them in good faith."28 The exacting imperative of this principle is such that
a state may not invoke provisions in its constitution or its laws as an excuse for failure to perform this
duty."29

The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed the
hereunder provision of RA 5446, is likewise unfounded.

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in
this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory
of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty.

189
There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners
obviously have read too much into RA 9522’s amendment on the baselines found in an older law. Aside
from setting the country’s baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of the
Philippines’ exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction
over all portions of the national territory as defined in the Constitution and by provisions of applicable
laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code
of 1991, as amended.

To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal outside
Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS III in fact
recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly by one or more
archipelagos and may include other islands." (emphasis supplied) The "other islands" referred to in Art.
46 are doubtless islands not forming part of the archipelago but are nevertheless part of the state’s
territory.

The Philippines’ sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished. Consider:
Other countries such as Malaysia and the United States have territories that are located outside its
baselines, yet there is no territorial question arising from this arrangement. 30

It may well be apropos to point out that the Senate version of the baseline bill that would become RA
9522 contained the following explanatory note: The law "reiterates our sovereignty over the Kalayaan
Group of Islands declared as part of the Philippine territory under Presidential Decree No. 1596. As part
of the Philippine territory, they shall be considered as a ‘regime of islands’ under Article 121 of the
Convention."31 Thus, instead of being in the nature of a "treasonous surrender" that petitioners have
described it to be, RA 9522 even harmonizes our baseline laws with our international agreements, without
limiting our territory to those confined within the country’s baselines.

Contrary to petitioners’ contention, the classification of KIG and the Scarborough Shoal as falling under
the Philippine’s regime of islands is not constitutionally objectionable. Such a classification serves as
compliance with LOSC and the Philippines’ assertion of sovereignty over KIG and Scarborough Shoal. In
setting the baseline in KIG and Scarborough Shoal, RA 9522 states that these are areas "over which the
Philippines likewise exercises sovereignty and jurisdiction." It is, thus, not correct for petitioners to claim
that the Philippines has lost 15,000 square nautical miles of territorial waters upon making this
classification. Having 15,000 square nautical miles of Philippine waters outside of our baselines, to
reiterate, does not translate to a surrender of these waters. The Philippines maintains its assertion of
ownership over territories outside of its baselines. Even China views RA 9522 as an assertion of ownership,
as seen in its Protest32 filed with the UN Secretary-General upon the deposit of RA 9522.

We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point out
that national and local elections are regularly held there. The classification of KIG as under a "regime of
islands" does not in any manner affect the Philippines’ consistent position with regard to sovereignty over
KIG. It does not affect the Philippines’ other acts of ownership such as occupation or amend Presidential
Decree No. 1596, which declared KIG as a municipality of Palawan.

190
The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract to the
constitutionality of the law in question. The resolution of the problem lies with the political departments
of the government.

All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of the
Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat, UNCLOS III
pertains to a law on the seas, not territory. As part of its Preamble,33 LOSC recognizes "the desirability of
establishing through this Convention, with due regard for the sovereignty of all States, a legal order for
the seas and oceans x x x."

This brings me to the matter of transit passage of foreign vessels through Philippine waters.

Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec. 8,
in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution hazards,
since under the LOSC the Philippines supposedly must give to ships of all states the right of innocent
passage and the right of archipelagic sea-lane passage.

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the Philippines
of "a policy of freedom from nuclear weapons in its territory." On the other hand, the succeeding Sec. l6
underscores the State’s firm commitment "to protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature." Following the allegations of
petitioners, these twin provisions will supposedly be violated inasmuch as RA 9522 accedes to the right of
innocent passage and the right of archipelagic sea-lane passage provided under the LOSC. Therefore, ships
of all nations––be they nuclear-carrying warships or neutral commercial vessels transporting goods––can
assert the right to traverse the waters within our islands.

A cursory reading of RA 9522 would belie petitioners’ posture. In context, RA 9522 simply seeks to
conform to our international agreement on the setting of baselines and provides nothing about the
designation of archipelagic sea-lane passage or the regulation of innocent passage within our waters.
Again, petitioners have read into the amendatory RA 9522 something not intended.

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms of
transit under Arts. 51 to 53, which are explained below:

To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need for
passage through the area (other than straits used for international navigation) and the archipelagic state’s
need for security, Article 53 gave the archipelagic state the right to regulate where and how ships and
aircraft pass through its territory by designating specific sea lanes. Rights of passage through these
archipelagic sea lanes are regarded as those of transit passage:

(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for safe,
continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air
routes.

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 (3) Archipelagic sea lanes passage is the exercise in accordance with the present Convention of
the rights of navigation and overflight in the normal mode solely for the purpose of continuous,
expeditious and unobstructed transit between one part of the high seas or an exclusive economic
zone and another part of the high seas or an exclusive economic zone.34

But owing to the geographic structure and physical features of the country, i.e., where it is "essentially a
body of water studded with islands, rather than islands with water around them,"35 the Philippines has
consistently maintained the conceptual unity of land and water as a necessary element for territorial
integrity,36 national security (which may be compromised by the presence of warships and surveillance
ships on waters between the islands),37 and the preservation of its maritime resources. As succinctly
explained by Minister Arturo Tolentino, the essence of the archipelagic concept is "the dominion and
sovereignty of the archipelagic State within its baselines, which were so drawn as to preserve the
territorial integrity of the archipelago by the inseparable unity of the land and water domain."38 Indonesia,
like the Philippines, in terms of geographic reality, has expressed agreement with this interpretation of
the archipelagic concept. So it was that in 1957, the Indonesian Government issued the Djuanda
Declaration, therein stating :

[H]istorically, the Indonesian archipelago has been an entity since time immemorial.1avvphi1 In view of
the territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to
consider all waters between the islands and entire entity.

x x x On the ground of the above considerations, the Government states that all waters around,
between and connecting, the islands or parts of islands belonging to the Indonesian archipelago
irrespective of their width or dimension are natural appurtenances of its land territory and
therefore an integral part of the inland or national waters subject to the absolute sovereignty of
Indonesia.39 (Emphasis supplied.)

Hence, the Philippines maintains the sui generis character of our archipelagic waters as equivalent
to the internal waters of continental coastal states. In other words, the landward waters
embraced within the baselines determined by RA 9522, i.e., all waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part
of the internal waters of the Philippines.40 Accordingly, such waters are not covered by the
jurisdiction of the LOSC and cannot be subjected to the rights granted to foreign states in
archipelagic waters, e.g., the right of innocent passage,41 which is allowed only in the territorial
seas, or that area of the ocean comprising 12 miles from the baselines of our archipelago;
archipelagic sea-lane passage;42 over flight;43 and traditional fishing rights.44

Our position that all waters within our baselines are internal waters, which are outside the
jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at the
time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the
Declaration state:

5. The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x
maintains and reserves the right and authority to make any amendments to such laws, decrees
or proclamations pursuant to the provisions of the Philippine Constitution;

192
 6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or
impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not
deprive it of authority to enact legislation to protect its sovereignty, independence and security;

7. The concept of archipelagic waters is similar to the concept of internal waters under the
Constitution of the Philippines and removes straits connecting this water with the economic zone
or high seas from the rights of foreign vessels to transit passage for international navigation.
(Emphasis supplied.)46

More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the
Philippine state as comprising both water and land was strengthened by the proviso in its first article, viz:
"The waters around, between, and connecting the islands of the [Philippine] archipelago, regardless of
their breadth and dimensions, form part of the internal waters of the Philippines. (emphasis supplied)

In effect, contrary to petitioners’ allegations, the Philippines’ ratification of the 1982 LOSC did not matter-
of-factly open our internal waters to passage by foreign ships, either in the concept of innocent passage
or archipelagic sea-lane passage, in exchange for the international community’s recognition of the
Philippines as an archipelagic state. The Filipino people, by ratifying the 1987 Constitution, veritably
rejected the quid pro quo petitioners take as being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the designation of baselines made in RA 9522
likewise designates our internal waters, through which passage by foreign ships is not a right, but may be
granted by the Philippines to foreign states but only as a dissolvable privilege.

In view of the foregoing, I vote to DISMISS the Petition.

PRESBITERO J. VELASCO, JR.

Associate Justice

G.R. No. 171182 August 23, 2012

UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, RAUL P. DE GUZMAN, RUBEN P. ASPIRAS,

EMMANUEL P. BELLO, WILFREDO P. DAVID, CASIANO S. ABRIGO, and JOSEFINA R.
LICUANAN,Petitioners,
vs.
HON. AGUSTIN S. DIZON, his capacity as Presiding Judge of the Regional Trial Court of Quezon City,
Branch 80, STERN BUILDERS, INC., and SERVILLANO DELA CRUZ, Respondents.

DECISION

BERSAMIN, J.:

Trial judges should not immediately issue writs of execution or garnishment against the Government or
any of its subdivisions, agencies and instrumentalities to enforce money judgments.1 They should bear in
mind that the primary jurisdiction to examine, audit and settle all claims of any sort due from the
Government or any of its subdivisions, agencies and instrumentalities pertains to the Commission on Audit
(COA) pursuant to Presidential Decree No. 1445 (Government Auditing Code of the Philippines).

193
The Case

On appeal by the University of the Philippines and its then incumbent officials (collectively, the UP) is the
decision promulgated on September 16, 2005,2 whereby the Court of Appeals (CA) upheld the order of
the Regional Trial Court (RTC), Branch 80, in Quezon City that directed the garnishment of public funds
amounting to P 16,370,191.74 belonging to the UP to satisfy the writ of execution issued to enforce the
already final and executory judgment against the UP.

Antecedents

On August 30, 1990, the UP, through its then President Jose V. Abueva, entered into a General
Construction Agreement with respondent Stern Builders Corporation (Stern Builders), represented by its
President and General Manager Servillano dela Cruz, for the construction of the extension building and
the renovation of the College of Arts and Sciences Building in the campus of the University of the
Philippines in Los Baños (UPLB).3

In the course of the implementation of the contract, Stern Builders submitted three progress billings
corresponding to the work accomplished, but the UP paid only two of the billings. The third billing
worth P 273,729.47 was not paid due to its disallowance by the Commission on Audit (COA). Despite the
lifting of the disallowance, the UP failed to pay the billing, prompting Stern Builders and dela Cruz to sue
the UP and its co-respondent officials to collect the unpaid billing and to recover various damages. The
suit, entitled Stern Builders Corporation and Servillano R. Dela Cruz v. University of the Philippines Systems,
Jose V. Abueva, Raul P. de Guzman, Ruben P. Aspiras, Emmanuel P. Bello, Wilfredo P. David, Casiano S.
Abrigo, and Josefina R. Licuanan, was docketed as Civil Case No. Q-93-14971 of the Regional Trial Court in
Quezon City (RTC).4

After trial, on November 28, 2001, the RTC rendered its decision in favor of the plaintiffs,5 viz:

Wherefore, in the light of the foregoing, judgment is hereby rendered in favor of the plaintiff and against
the defendants ordering the latter to pay plaintiff, jointly and severally, the following, to wit:

1. P 503,462.74 amount of the third billing, additional accomplished work and retention
money

2. P 5,716,729.00 in actual damages

3. P 10,000,000.00 in moral damages

4. P 150,000.00 and P 1,500.00 per appearance as attorney’s fees; and

5. Costs of suit.

SO ORDERED.

Following the RTC’s denial of its motion for reconsideration on May 7, 2002,6 the UP filed a notice of
appeal on June 3, 2002.7 Stern Builders and dela Cruz opposed the notice of appeal on the ground of its
filing being belated, and moved for the execution of the decision. The UP countered that the notice of

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appeal was filed within the reglementary period because the UP’s Office of Legal Affairs (OLS) in Diliman,
Quezon City received the order of denial only on May 31, 2002. On September 26, 2002, the RTC denied
due course to the notice of appeal for having been filed out of time and granted the private respondents’
motion for execution.8

The RTC issued the writ of execution on October 4, 2002,9 and the sheriff of the RTC served the writ of
execution and notice of demand upon the UP, through its counsel, on October 9, 2002.10 The UP filed an
urgent motion to reconsider the order dated September 26, 2002, to quash the writ of execution dated
October 4, 2002, and to restrain the proceedings.11 However, the RTC denied the urgent motion on April
1, 2003.12

On June 24, 2003, the UP assailed the denial of due course to its appeal through a petition for certiorari in
the Court of Appeals (CA), docketed as CA-G.R. No. 77395.13

On February 24, 2004, the CA dismissed the petition for certiorari upon finding that the UP’s notice of
appeal had been filed late,14 stating:

Records clearly show that petitioners received a copy of the Decision dated November 28, 2001 and
January 7, 2002, thus, they had until January 22, 2002 within which to file their appeal. On January 16,
2002 or after the lapse of nine (9) days, petitioners through their counsel Atty. Nolasco filed a Motion for
Reconsideration of the aforesaid decision, hence, pursuant to the rules, petitioners still had six (6)
remaining days to file their appeal. As admitted by the petitioners in their petition (Rollo, p. 25), Atty.
Nolasco received a copy of the Order denying their motion for reconsideration on May 17, 2002, thus,
petitioners still has until May 23, 2002 (the remaining six (6) days) within which to file their appeal.
Obviously, petitioners were not able to file their Notice of Appeal on May 23, 2002 as it was only filed on
June 3, 2002.

In view of the said circumstances, We are of the belief and so holds that the Notice of Appeal filed by the
petitioners was really filed out of time, the same having been filed seventeen (17) days late of the
reglementary period. By reason of which, the decision dated November 28, 2001 had already become
final and executory. "Settled is the rule that the perfection of an appeal in the manner and within the
period permitted by law is not only mandatory but jurisdictional, and failure to perfect that appeal renders
the challenged judgment final and executory. This is not an empty procedural rule but is grounded on
fundamental considerations of public policy and sound practice." (Ram’s Studio and Photographic
Equipment, Inc. vs. Court of Appeals, 346 SCRA 691, 696). Indeed, Atty. Nolasco received the order of
denial of the Motion for Reconsideration on May 17, 2002 but filed a Notice of Appeal only on June 3,
3003. As such, the decision of the lower court ipso facto became final when no appeal was perfected after
the lapse of the reglementary period. This procedural caveat cannot be trifled with, not even by the High
Court.15

The UP sought a reconsideration, but the CA denied the UP’s motion for reconsideration on April 19,
2004.16

On May 11, 2004, the UP appealed to the Court by petition for review on certiorari (G.R. No. 163501).

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On June 23, 2004, the Court denied the petition for review.17 The UP moved for the reconsideration of the
denial of its petition for review on August 29, 2004,18 but the Court denied the motion on October 6,
2004.19 The denial became final and executory on November 12, 2004.20

In the meanwhile that the UP was exhausting the available remedies to overturn the denial of due course
to the appeal and the issuance of the writ of execution, Stern Builders and dela Cruz filed in the RTC their
motions for execution despite their previous motion having already been granted and despite the writ of
execution having already issued. On June 11, 2003, the RTC granted another motion for execution filed
on May 9, 2003 (although the RTC had already issued the writ of execution on October 4, 2002).21

On June 23, 2003 and July 25, 2003, respectively, the sheriff served notices of garnishment on the UP’s
depository banks, namely: Land Bank of the Philippines (Buendia Branch) and the Development Bank of
the Philippines (DBP), Commonwealth Branch.22 The UP assailed the garnishment through an urgent
motion to quash the notices of garnishment;23 and a motion to quash the writ of execution dated May 9,
2003.24

On their part, Stern Builders and dela Cruz filed their ex parte motion for issuance of a release order.25

On October 14, 2003, the RTC denied the UP’s urgent motion to quash, and granted Stern Builders and
dela Cruz’s ex parte motion for issuance of a release order.26

The UP moved for the reconsideration of the order of October 14, 2003, but the RTC denied the motion
on November 7, 2003.27

On January 12, 2004, Stern Builders and dela Cruz again sought the release of the garnished
funds.28 Despite the UP’s opposition,29 the RTC granted the motion to release the garnished funds on
March 16, 2004.30 On April 20, 2004, however, the RTC held in abeyance the enforcement of the writs of
execution issued on October 4, 2002 and June 3, 2003 and all the ensuing notices of garnishment, citing
Section 4, Rule 52, Rules of Court, which provided that the pendency of a timely motion for
reconsideration stayed the execution of the judgment.31

On December 21, 2004, the RTC, through respondent Judge Agustin S. Dizon, authorized the release of
the garnished funds of the UP,32 to wit:

WHEREFORE, premises considered, there being no more legal impediment for the release of the garnished
amount in satisfaction of the judgment award in the instant case, let the amount garnished be
immediately released by the Development Bank of the Philippines, Commonwealth Branch, Quezon City
in favor of the plaintiff.

SO ORDERED.

The UP was served on January 3, 2005 with the order of December 21, 2004 directing DBP to release the
garnished funds.33

On January 6, 2005, Stern Builders and dela Cruz moved to cite DBP in direct contempt of court for its
non-compliance with the order of release.34

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Thereupon, on January 10, 2005, the UP brought a petition for certiorari in the CA to challenge the
jurisdiction of the RTC in issuing the order of December 21, 2004 (CA-G.R. CV No. 88125).35 Aside from
raising the denial of due process, the UP averred that the RTC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that there was no longer any legal impediment to the
release of the garnished funds. The UP argued that government funds and properties could not be seized
by virtue of writs of execution or garnishment, as held in Department of Agriculture v. National Labor
Relations Commission,36 and citing Section 84 of Presidential Decree No. 1445 to the effect that "revenue
funds shall not be paid out of any public treasury or depository except in pursuance of an appropriation
law or other specific statutory authority;" and that the order of garnishment clashed with the ruling in
University of the Philippines Board of Regents v. Ligot-Telan37 to the effect that the funds belonging to the
UP were public funds.

On January 19, 2005, the CA issued a temporary restraining order (TRO) upon application by the UP.38

On March 22, 2005, Stern Builders and dela Cruz filed in the RTC their amended motion for sheriff’s
assistance to implement the release order dated December 21, 2004, stating that the 60-day period of
the TRO of the CA had already lapsed.39 The UP opposed the amended motion and countered that the
implementation of the release order be suspended.40

On May 3, 2005, the RTC granted the amended motion for sheriff’s assistance and directed the sheriff to
proceed to the DBP to receive the check in satisfaction of the judgment.41

The UP sought the reconsideration of the order of May 3, 2005.42

On May 16, 2005, DBP filed a motion to consign the check representing the judgment award and to dismiss
the motion to cite its officials in contempt of court.43

On May 23, 2005, the UP presented a motion to withhold the release of the payment of the judgment
award.44

On July 8, 2005, the RTC resolved all the pending matters,45 noting that the DBP had already delivered to
the sheriff Manager’s Check No. 811941 for P 16,370,191.74 representing the garnished funds payable to
the order of Stern Builders and dela Cruz as its compliance with the RTC’s order dated December 21,
2004.46 However, the RTC directed in the same order that Stern Builders and dela Cruz should not encash
the check or withdraw its amount pending the final resolution of the UP’s petition for certiorari, to wit:47

To enable the money represented in the check in question (No. 00008119411) to earn interest during the
pendency of the defendant University of the Philippines application for a writ of injunction with the Court
of Appeals the same may now be deposited by the plaintiff at the garnishee Bank (Development Bank of
the Philippines), the disposition of the amount represented therein being subject to the final outcome of
the case of the University of the Philippines et al., vs. Hon. Agustin S. Dizon et al., (CA G.R. 88125) before
the Court of Appeals.

Let it be stated herein that the plaintiff is not authorized to encash and withdraw the amount represented
in the check in question and enjoy the same in the fashion of an owner during the pendency of the case
between the parties before the Court of Appeals which may or may not be resolved in plaintiff’s favor.

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With the end in view of seeing to it that the check in question is deposited by the plaintiff at the
Development Bank of the Philippines (garnishee bank), Branch Sheriff Herlan Velasco is directed to
accompany and/or escort the plaintiff in making the deposit of the check in question.

SO ORDERED.

On September 16, 2005, the CA promulgated its assailed decision dismissing the UP’s petition for
certiorari, ruling that the UP had been given ample opportunity to contest the motion to direct the DBP
to deposit the check in the name of Stern Builders and dela Cruz; and that the garnished funds could be
the proper subject of garnishment because they had been already earmarked for the project, with the UP
holding the funds only in a fiduciary capacity,48 viz:

Petitioners next argue that the UP funds may not be seized for execution or garnishment to satisfy the
judgment award. Citing Department of Agriculture vs. NLRC, University of the Philippines Board of Regents
vs. Hon. Ligot-Telan, petitioners contend that UP deposits at Land Bank and the Development Bank of the
Philippines, being government funds, may not be released absent an appropriations bill from Congress.

The argument is specious. UP entered into a contract with private respondents for the expansion and
renovation of the Arts and Sciences Building of its campus in Los Baños, Laguna. Decidedly, there was
already an appropriations earmarked for the said project. The said funds are retained by UP, in a fiduciary
capacity, pending completion of the construction project.

We agree with the trial Court [sic] observation on this score:

"4. Executive Order No. 109 (Directing all National Government Agencies to Revert
Certain Accounts Payable to the Cumulative Result of Operations of the National
Government and for Other Purposes) Section 9. Reversion of Accounts Payable, provides
that, all 1995 and prior years documented accounts payable and all undocumented
accounts regardless of the year they were incurred shall be reverted to the Cumulative
Result of Operations of the National Government (CROU). This shall apply to accounts
payable of all funds, except fiduciary funds, as long as the purpose for which the funds
were created have not been accomplished and accounts payable under foreign assisted
projects for the duration of the said project. In this regard, the Department of Budget and
Management issued Joint-Circular No. 99-6 4.0 (4.3) Procedural Guidelines which
provides that all accounts payable that reverted to the CROU may be considered for
payment upon determination thru administrative process, of the existence, validity and
legality of the claim. Thus, the allegation of the defendants that considering no
appropriation for the payment of any amount awarded to plaintiffs appellee the funds of
defendant-appellants may not be seized pursuant to a writ of execution issued by the
regular court is misplaced. Surely when the defendants and the plaintiff entered into the
General Construction of Agreement there is an amount already allocated by the latter for
the said project which is no longer subject of future appropriation."49

After the CA denied their motion for reconsideration on December 23, 2005, the petitioners appealed by
petition for review.

Matters Arising During the Pendency of the Petition

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On January 30, 2006, Judge Dizon of the RTC (Branch 80) denied Stern Builders and dela Cruz’s motion to
withdraw the deposit, in consideration of the UP’s intention to appeal to the CA,50 stating:

Since it appears that the defendants are intending to file a petition for review of the Court of Appeals
resolution in CA-G.R. No. 88125 within the reglementary period of fifteen (15) days from receipt of
resolution, the Court agrees with the defendants stand that the granting of plaintiffs’ subject motion is
premature.

Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the
"disposition of the amount represented therein being subject to the final outcome of the case of the
University of the Philippines, et. al., vs. Hon. Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court
of Appeals) is that the judgment or resolution of said court has to be final and executory, for if the same
will still be elevated to the Supreme Court, it will not attain finality yet until the highest court has rendered
its own final judgment or resolution.51

However, on January 22, 2007, the UP filed an Urgent Application for A Temporary Restraining Order
and/or A Writ of Preliminary Injunction,52 averring that on January 3, 2007, Judge Maria Theresa dela
Torre-Yadao (who had meanwhile replaced Judge Dizon upon the latter’s appointment to the CA) had
issued another order allowing Stern Builders and dela Cruz to withdraw the deposit,53 to wit:

It bears stressing that defendants’ liability for the payment of the judgment obligation has become
indubitable due to the final and executory nature of the Decision dated November 28, 2001. Insofar as
the payment of the [sic] judgment obligation is concerned, the Court believes that there is nothing more
the defendant can do to escape liability. It is observed that there is nothing more the defendant can do to
escape liability. It is observed that defendant U.P. System had already exhausted all its legal remedies to
overturn, set aside or modify the decision (dated November 28, 2001( rendered against it. The way the
Court sees it, defendant U.P. System’s petition before the Supreme Court concerns only with the manner
by which said judgment award should be satisfied. It has nothing to do with the legality or propriety
thereof, although it prays for the deletion of [sic] reduction of the award of moral damages.

It must be emphasized that this Court’s finding, i.e., that there was sufficient appropriation earmarked for
the project, was upheld by the Court of Appeals in its decision dated September 16, 2005. Being a finding
of fact, the Supreme Court will, ordinarily, not disturb the same was said Court is not a trier of fact. Such
being the case, defendants’ arguments that there was no sufficient appropriation for the payment of the
judgment obligation must fail.

While it is true that the former Presiding Judge of this Court in its Order dated January 30, 2006 had stated
that:

Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the
"disposition of the amount represented therein being subject to the final outcome of the case of the
University of the Philippines, et. al., vs. Hon. Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court
of Appeals) is that the judgment or resolution of said court has to be final and executory, for if the same
will still be elevated to the Supreme Court, it will not attain finality yet until the highest court has rendered
its own final judgment or resolution.

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it should be noted that neither the Court of Appeals nor the Supreme Court issued a preliminary injunction
enjoining the release or withdrawal of the garnished amount. In fact, in its present petition for review
before the Supreme Court, U.P. System has not prayed for the issuance of a writ of preliminary injunction.
Thus, the Court doubts whether such writ is forthcoming.

The Court honestly believes that if defendants’ petition assailing the Order of this Court dated December
31, 2004 granting the motion for the release of the garnished amount was meritorious, the Court of
Appeals would have issued a writ of injunction enjoining the same. Instead, said appellate court not only
refused to issue a wit of preliminary injunction prayed for by U.P. System but denied the petition, as well.54

The UP contended that Judge Yadao thereby effectively reversed the January 30, 2006 order of Judge
Dizon disallowing the withdrawal of the garnished amount until after the decision in the case would have
become final and executory.

Although the Court issued a TRO on January 24, 2007 to enjoin Judge Yadao and all persons acting
pursuant to her authority from enforcing her order of January 3, 2007,55 it appears that on January 16,
2007, or prior to the issuance of the TRO, she had already directed the DBP to forthwith release the
garnished amount to Stern Builders and dela Cruz; 56 and that DBP had forthwith complied with the order
on January 17, 2007 upon the sheriff’s service of the order of Judge Yadao.57

These intervening developments impelled the UP to file in this Court a supplemental petition on January
26, 2007,58 alleging that the RTC (Judge Yadao) gravely erred in ordering the immediate release of the
garnished amount despite the pendency of the petition for review in this Court.

The UP filed a second supplemental petition59 after the RTC (Judge Yadao) denied the UP’s motion for the
redeposit of the withdrawn amount on April 10, 2007,60 to wit:

This resolves defendant U.P. System’s Urgent Motion to Redeposit Judgment Award praying that plaintiffs
be directed to redeposit the judgment award to DBP pursuant to the Temporary Restraining Order issued
by the Supreme Court. Plaintiffs opposed the motion and countered that the Temporary Restraining Order
issued by the Supreme Court has become moot and academic considering that the act sought to be
restrained by it has already been performed. They also alleged that the redeposit of the judgment award
was no longer feasible as they have already spent the same.

It bears stressing, if only to set the record straight, that this Court did not – in its Order dated January 3,
2007 (the implementation of which was restrained by the Supreme Court in its Resolution dated January
24, 2002) – direct that that garnished amount "be deposited with the garnishee bank (Development Bank
of the Philippines)". In the first place, there was no need to order DBP to make such deposit, as the
garnished amount was already deposited in the account of plaintiffs with the DBP as early as May 13,
2005. What the Court granted in its Order dated January 3, 2007 was plaintiff’s motion to allow the release
of said deposit. It must be recalled that the Court found plaintiff’s motion meritorious and, at that time,
there was no restraining order or preliminary injunction from either the Court of Appeals or the Supreme
Court which could have enjoined the release of plaintiffs’ deposit. The Court also took into account the
following factors:

a) the Decision in this case had long been final and executory after it was rendered on
November 28, 2001;

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 b) the propriety of the dismissal of U.P. System’s appeal was upheld by the Supreme
Court;

c) a writ of execution had been issued;

d) defendant U.P. System’s deposit with DBP was garnished pursuant to a lawful writ of
execution issued by the Court; and

e) the garnished amount had already been turned over to the plaintiffs and deposited in
their account with DBP.

The garnished amount, as discussed in the Order dated January 16, 2007, was already owned by the
plaintiffs, having been delivered to them by the Deputy Sheriff of this Court pursuant to par. (c), Section
9, Rule 39 of the 1997 Rules of Civil Procedure. Moreover, the judgment obligation has already been fully
satisfied as per Report of the Deputy Sheriff.

Anent the Temporary Restraining Order issued by the Supreme Court, the same has become functus
oficio, having been issued after the garnished amount had been released to the plaintiffs. The judgment
debt was released to the plaintiffs on January 17, 2007, while the Temporary Restraining Order issued by
the Supreme Court was received by this Court on February 2, 2007. At the time of the issuance of the
Restraining Order, the act sought to be restrained had already been done, thereby rendering the said
Order ineffectual.

After a careful and thorough study of the arguments advanced by the parties, the Court is of the
considered opinion that there is no legal basis to grant defendant U.P. System’s motion to redeposit the
judgment amount. Granting said motion is not only contrary to law, but it will also render this Court’s final
executory judgment nugatory. Litigation must end and terminate sometime and somewhere, and it is
essential to an effective administration of justice that once a judgment has become final the issue or cause
involved therein should be laid to rest. This doctrine of finality of judgment is grounded on fundamental
considerations of public policy and sound practice. In fact, nothing is more settled in law than that once a
judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in
any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion
of fact or law, and regardless of whether the modification is attempted to be made by the court rendering
it or by the highest court of the land.

WHEREFORE, premises considered, finding defendant U.P. System’s Urgent Motion to Redeposit
Judgment Award devoid of merit, the same is hereby DENIED.

SO ORDERED.

Issues

The UP now submits that:

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THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISMISSING THE PETITION, ALLOWING IN EFFECT
THE GARNISHMENT OF UP FUNDS, WHEN IT RULED THAT FUNDS HAVE ALREADY BEEN EARMARKED FOR
THE CONSTRUCTION PROJECT; AND THUS, THERE IS NO NEED FOR FURTHER APPROPRIATIONS.

II

THE COURT OF APPEALS COMMITTED GRAVE ERROR IN ALLOWING GARNISHMENT OF A STATE

UNIVERSITY’S FUNDS IN VIOLATION OF ARTICLE XIV, SECTION 5(5) OF THE CONSTITUTION.

III

IN THE ALTERNATIVE, THE UNIVERSITY INVOKES EQUITY AND THE REVIEW POWERS OF THIS HONORABLE
COURT TO MODIFY, IF NOT TOTALLY DELETE THE AWARD OF P 10 MILLION AS MORAL DAMAGES TO
RESPONDENTS.

IV

THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE
JUDGMENT AWARD IN ITS ORDER DATED 3 JANUARY 2007 ON THE GROUND OF EQUITY AND JUDICIAL
COURTESY.

THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE
JUDGMENT AWARD IN ITS ORDER DATED 16 JANUARY 2007 ON THE GROUND THAT PETITIONER
UNIVERSITY STILL HAS A PENDING MOTION FOR RECONSIDERATION OF THE ORDER DATED 3 JANUARY
2007.

VI

THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN NOT ORDERING THE REDEPOSIT OF THE GARNISHED
AMOUNT TO THE DBP IN VIOLATION OF THE CLEAR LANGUAGE OF THE SUPREME COURT RESOLUTION
DATED 24 JANUARY 2007.

The UP argues that the amount earmarked for the construction project had been purposely set aside only
for the aborted project and did not include incidental matters like the awards of actual damages, moral
damages and attorney’s fees. In support of its argument, the UP cited Article 12.2 of the General
Construction Agreement, which stipulated that no deductions would be allowed for the payment of
claims, damages, losses and expenses, including attorney’s fees, in case of any litigation arising out of the
performance of the work. The UP insists that the CA decision was inconsistent with the rulings in
Commissioner of Public Highways v. San Diego61 and Department of Agriculture v. NLRC62 to the effect
that government funds and properties could not be seized under writs of execution or garnishment to
satisfy judgment awards.

Furthermore, the UP contends that the CA contravened Section 5, Article XIV of the Constitution by
allowing the garnishment of UP funds, because the garnishment resulted in a substantial reduction of the
UP’s limited budget allocated for the remuneration, job satisfaction and fulfillment of the best available

202
teachers; that Judge Yadao should have exhibited judicial courtesy towards the Court due to the pendency
of the UP’s petition for review; and that she should have also desisted from declaring that the TRO issued
by this Court had become functus officio.

Lastly, the UP states that the awards of actual damages of P 5,716,729.00 and moral damages of P 10
million should be reduced, if not entirely deleted, due to its being unconscionable, inequitable and
detrimental to public service.

In contrast, Stern Builders and dela Cruz aver that the petition for review was fatally defective for its failure
to mention the other cases upon the same issues pending between the parties (i.e., CA-G.R. No. 77395
and G.R No. 163501); that the UP was evidently resorting to forum shopping, and to delaying the
satisfaction of the final judgment by the filing of its petition for review; that the ruling in Commissioner of
Public Works v. San Diego had no application because there was an appropriation for the project; that the
UP retained the funds allotted for the project only in a fiduciary capacity; that the contract price had been
meanwhile adjusted to P 22,338,553.25, an amount already more than sufficient to cover the judgment
award; that the UP’s prayer to reduce or delete the award of damages had no factual basis, because they
had been gravely wronged, had been deprived of their source of income, and had suffered untold
miseries, discomfort, humiliation and sleepless years; that dela Cruz had even been constrained to sell his
house, his equipment and the implements of his trade, and together with his family had been forced to
live miserably because of the wrongful actuations of the UP; and that the RTC correctly declared the
Court’s TRO to be already functus officio by reason of the withdrawal of the garnished amount from the
DBP.

The decisive issues to be considered and passed upon are, therefore:

(a) whether the funds of the UP were the proper subject of garnishment in order to satisfy the judgment
award; and (b) whether the UP’s prayer for the deletion of the awards of actual damages
of P 5,716,729.00, moral damages of P 10,000,000.00 and attorney’s fees of P 150,000.00 plus P 1,500.00
per appearance could be granted despite the finality of the judgment of the RTC.

Ruling

The petition for review is meritorious.

I.
UP’s funds, being government funds,
are not subject to garnishment

The UP was founded on June 18, 1908 through Act 1870 to provide advanced instruction in literature,
philosophy, the sciences, and arts, and to give professional and technical training to deserving
students.63 Despite its establishment as a body corporate,64 the UP remains to be a "chartered
institution"65 performing a legitimate government function. It is an institution of higher learning, not a
corporation established for profit and declaring any dividends.66 In enacting Republic Act No. 9500 (The
University of the Philippines Charter of 2008), Congress has declared the UP as the national
university67 "dedicated to the search for truth and knowledge as well as the development of future
leaders."68

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Irrefragably, the UP is a government instrumentality,69 performing the State’s constitutional mandate of
promoting quality and accessible education.70 As a government instrumentality, the UP administers
special funds sourced from the fees and income enumerated under Act No. 1870 and Section 1 of
Executive Order No. 714,71 and from the yearly appropriations, to achieve the purposes laid down by
Section 2 of Act 1870, as expanded in Republic Act No. 9500.72 All the funds going into the possession of
the UP, including any interest accruing from the deposit of such funds in any banking institution, constitute
a "special trust fund," the disbursement of which should always be aligned with the UP’s mission and
purpose,73 and should always be subject to auditing by the COA.74

Presidential Decree No. 1445 defines a "trust fund" as a fund that officially comes in the possession of an
agency of the government or of a public officer as trustee, agent or administrator, or that is received for
the fulfillment of some obligation.75 A trust fund may be utilized only for the "specific purpose for which
the trust was created or the funds received."76

The funds of the UP are government funds that are public in character. They include the income accruing
from the use of real property ceded to the UP that may be spent only for the attainment of its institutional
objectives.77Hence, the funds subject of this action could not be validly made the subject of the RTC’s writ
of execution or garnishment. The adverse judgment rendered against the UP in a suit to which it had
impliedly consented was not immediately enforceable by execution against the UP,78 because suability of
the State did not necessarily mean its liability.79

A marked distinction exists between suability of the State and its liability. As the Court succinctly stated
in Municipality of San Fernando, La Union v. Firme:80

A distinction should first be made between suability and liability. "Suability depends on the consent of the
state to be sued, liability on the applicable law and the established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does
not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to
be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.

Also, in Republic v. Villasor,81 where the issuance of an alias writ of execution directed against the funds
of the Armed Forces of the Philippines to satisfy a final and executory judgment was nullified, the Court
said:

xxx The universal rule that where the State gives its consent to be sued by private parties either by general
or special law, it may limit claimant’s action "only up to the completion of proceedings anterior to the
stage of execution" and that the power of the Courts ends when the judgment is rendered, since
government funds and properties may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy. Disbursements of public funds must
be covered by the corresponding appropriation as required by law. The functions and public services
rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects, as appropriated by law.

The UP correctly submits here that the garnishment of its funds to satisfy the judgment awards of actual
and moral damages (including attorney’s fees) was not validly made if there was no special appropriation
by Congress to cover the liability. It was, therefore, legally unwarranted for the CA to agree with the RTC’s

204
holding in the order issued on April 1, 2003 that no appropriation by Congress to allocate and set aside
the payment of the judgment awards was necessary because "there (were) already an appropriations (sic)
earmarked for the said project."82The CA and the RTC thereby unjustifiably ignored the legal restriction
imposed on the trust funds of the Government and its agencies and instrumentalities to be used
exclusively to fulfill the purposes for which the trusts were created or for which the funds were received
except upon express authorization by Congress or by the head of a government agency in control of the
funds, and subject to pertinent budgetary laws, rules and regulations.83

Indeed, an appropriation by Congress was required before the judgment that rendered the UP liable for
moral and actual damages (including attorney’s fees) would be satisfied considering that such monetary
liabilities were not covered by the "appropriations earmarked for the said project." The Constitution
strictly mandated that "(n)o money shall be paid out of the Treasury except in pursuance of an
appropriation made by law."84

II
COA must adjudicate private respondents’ claim
before execution should proceed

The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA.
This was expressly provided in Section 26 of Presidential Decree No. 1445, to wit:

Section 26. General jurisdiction. - The authority and powers of the Commission shall extend to and
comprehend all matters relating to auditing procedures, systems and controls, the keeping of the general
accounts of the Government, the preservation of vouchers pertaining thereto for a period of ten years,
the examination and inspection of the books, records, and papers relating to those accounts; and the
audit and settlement of the accounts of all persons respecting funds or property received or held by them
in an accountable capacity, as well as the examination, audit, and settlement of all debts and claims of
any sort due from or owing to the Government or any of its subdivisions, agencies and instrumentalities.
The said jurisdiction extends to all government-owned or controlled corporations, including their
subsidiaries, and other self-governing boards, commissions, or agencies of the Government, and as herein
prescribed, including non governmental entities subsidized by the government, those funded by
donations through the government, those required to pay levies or government share, and those for
which the government has put up a counterpart fund or those partly funded by the government.

It was of no moment that a final and executory decision already validated the claim against the UP. The
settlement of the monetary claim was still subject to the primary jurisdiction of the COA despite the final
decision of the RTC having already validated the claim.85 As such, Stern Builders and dela Cruz as the
claimants had no alternative except to first seek the approval of the COA of their monetary claim.

On its part, the RTC should have exercised utmost caution, prudence and judiciousness in dealing with the
motions for execution against the UP and the garnishment of the UP’s funds. The RTC had no authority to
direct the immediate withdrawal of any portion of the garnished funds from the depository banks of the
UP. By eschewing utmost caution, prudence and judiciousness in dealing with the execution and
garnishment, and by authorizing the withdrawal of the garnished funds of the UP, the RTC acted beyond
its jurisdiction, and all its orders and issuances thereon were void and of no legal effect, specifically: (a)
the order Judge Yadao issued on January 3, 2007 allowing Stern Builders and dela Cruz to withdraw the
deposited garnished amount; (b) the order Judge Yadao issued on January 16, 2007 directing DBP to
forthwith release the garnish amount to Stern Builders and dela Cruz; (c) the sheriff’s report of January

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17, 2007 manifesting the full satisfaction of the writ of execution; and (d) the order of April 10, 2007
deying the UP’s motion for the redeposit of the withdrawn amount. Hence, such orders and issuances
should be struck down without exception.

Nothing extenuated Judge Yadao’s successive violations of Presidential Decree No. 1445. She was aware
of Presidential Decree No. 1445, considering that the Court circulated to all judges its Administrative
Circular No. 10-2000,86 issued on October 25, 2000, enjoining them "to observe utmost caution, prudence
and judiciousness in the issuance of writs of execution to satisfy money judgments against government
agencies and local government units" precisely in order to prevent the circumvention of Presidential
Decree No. 1445, as well as of the rules and procedures of the COA, to wit:

In order to prevent possible circumvention of the rules and procedures of the Commission on Audit,
judges are hereby enjoined to observe utmost caution, prudence and judiciousness in the issuance of
writs of execution to satisfy money judgments against government agencies and local government
units.

Judges should bear in mind that in Commissioner of Public Highways v. San Diego (31 SCRA 617, 625 1970),
this Court explicitly stated:

"The universal rule that where the State gives its consent to be sued by private parties either by general
or special law, it may limit claimant’s action ‘only up to the completion of proceedings anterior to the
stage of execution’ and that the power of the Court ends when the judgment is rendered, since
government funds and properties may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy. Disbursements of public funds must
be covered by the corresponding appropriation as required by law. The functions and public services
rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects, as appropriated by law.

Moreover, it is settled jurisprudence that upon determination of State liability, the prosecution,
enforcement or satisfaction thereof must still be pursued in accordance with the rules and procedures
laid down in P.D. No. 1445, otherwise known as the Government Auditing Code of the Philippines
(Department of Agriculture v. NLRC, 227 SCRA 693, 701-02 1993 citing Republic vs. Villasor, 54 SCRA 84
1973). All money claims against the Government must first be filed with the Commission on Audit which
must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the
matter to the Supreme Court on certiorari and in effect, sue the State thereby (P.D. 1445, Sections 49-
50).

However, notwithstanding the rule that government properties are not subject to levy and execution
unless otherwise provided for by statute (Republic v. Palacio, 23 SCRA 899 1968; Commissioner of Public
Highways v. San Diego, supra) or municipal ordinance (Municipality of Makati v. Court of Appeals, 190
SCRA 206 1990), the Court has, in various instances, distinguished between government funds and
properties for public use and those not held for public use. Thus, in Viuda de Tan Toco v. Municipal Council
of Iloilo (49 Phil 52 1926, the Court ruled that "where property of a municipal or other public corporation
is sought to be subjected to execution to satisfy judgments recovered against such corporation, the
question as to whether such property is leviable or not is to be determined by the usage and purposes for
which it is held." The following can be culled from Viuda de Tan Toco v. Municipal Council of Iloilo:

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1. Properties held for public uses – and generally everything held for governmental purposes – are not
subject to levy and sale under execution against such corporation. The same rule applies to funds in the
hands of a public officer and taxes due to a municipal corporation.

2. Where a municipal corporation owns in its proprietary capacity, as distinguished from its public or
government capacity, property not used or used for a public purpose but for quasi-private purposes, it is
the general rule that such property may be seized and sold under execution against the corporation.

3. Property held for public purposes is not subject to execution merely because it is temporarily used for
private purposes. If the public use is wholly abandoned, such property becomes subject to execution.

This Administrative Circular shall take effect immediately and the Court Administrator shall see to it that
it is faithfully implemented.

Although Judge Yadao pointed out that neither the CA nor the Court had issued as of then any writ of
preliminary injunction to enjoin the release or withdrawal of the garnished amount, she did not need any
writ of injunction from a superior court to compel her obedience to the law. The Court is disturbed that
an experienced judge like her should look at public laws like Presidential Decree No. 1445 dismissively
instead of loyally following and unquestioningly implementing them. That she did so turned her court into
an oppressive bastion of mindless tyranny instead of having it as a true haven for the seekers of justice
like the UP.

III
Period of appeal did not start without effective
service of decision upon counsel of record;
Fresh-period rule announced in
Neypes v. Court of Appeals
can be given retroactive application

The UP next pleads that the Court gives due course to its petition for review in the name of equity in order
to reverse or modify the adverse judgment against it despite its finality. At stake in the UP’s plea for equity
was the return of the amount of P 16,370,191.74 illegally garnished from its trust funds. Obstructing the
plea is the finality of the judgment based on the supposed tardiness of UP’s appeal, which the RTC
declared on September 26, 2002. The CA upheld the declaration of finality on February 24, 2004, and the
Court itself denied the UP’s petition for review on that issue on May 11, 2004 (G.R. No. 163501). The
denial became final on November 12, 2004.

It is true that a decision that has attained finality becomes immutable and unalterable, and cannot be
modified in any respect,87 even if the modification is meant to correct erroneous conclusions of fact and
law, and whether the modification is made by the court that rendered it or by this Court as the highest
court of the land.88 Public policy dictates that once a judgment becomes final, executory and
unappealable, the prevailing party should not be deprived of the fruits of victory by some subterfuge
devised by the losing party. Unjustified delay in the enforcement of such judgment sets at naught the role
and purpose of the courts to resolve justiciable controversies with finality.89 Indeed, all litigations must at
some time end, even at the risk of occasional errors.

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But the doctrine of immutability of a final judgment has not been absolute, and has admitted several
exceptions, among them: (a) the correction of clerical errors; (b) the so-called nunc pro tunc entries that
cause no prejudice to any party; (c) void judgments; and (d) whenever circumstances transpire after the
finality of the decision that render its execution unjust and inequitable.90 Moreover, in Heirs of Maura So
v. Obliosca,91 we stated that despite the absence of the preceding circumstances, the Court is not
precluded from brushing aside procedural norms if only to serve the higher interests of justice and equity.
Also, in Gumaru v. Quirino State College,92 the Court nullified the proceedings and the writ of execution
issued by the RTC for the reason that respondent state college had not been represented in the litigation
by the Office of the Solicitor General.

We rule that the UP’s plea for equity warrants the Court’s exercise of the exceptional power to disregard
the declaration of finality of the judgment of the RTC for being in clear violation of the UP’s right to due
process.

Both the CA and the RTC found the filing on June 3, 2002 by the UP of the notice of appeal to be tardy.
They based their finding on the fact that only six days remained of the UP’s reglementary 15-day period
within which to file the notice of appeal because the UP had filed a motion for reconsideration on January
16, 2002 vis-à-vis the RTC’s decision the UP received on January 7, 2002; and that because the denial of
the motion for reconsideration had been served upon Atty. Felimon D. Nolasco of the UPLB Legal Office
on May 17, 2002, the UP had only until May 23, 2002 within which to file the notice of appeal.

The UP counters that the service of the denial of the motion for reconsideration upon Atty. Nolasco was
defective considering that its counsel of record was not Atty. Nolasco of the UPLB Legal Office but the OLS
in Diliman, Quezon City; and that the period of appeal should be reckoned from May 31, 2002, the date
when the OLS received the order. The UP submits that the filing of the notice of appeal on June 3, 2002
was well within the reglementary period to appeal.

We agree with the submission of the UP.

Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the UPLB Legal
Office was invalid and ineffectual because he was admittedly not the counsel of record of the UP. The rule
is that it is on the counsel and not the client that the service should be made.93

That counsel was the OLS in Diliman, Quezon City, which was served with the denial only on May 31, 2002.
As such, the running of the remaining period of six days resumed only on June 1, 2002,94 rendering the
filing of the UP’s notice of appeal on June 3, 2002 timely and well within the remaining days of the UP’s
period to appeal.

Verily, the service of the denial of the motion for reconsideration could only be validly made upon the OLS
in Diliman, and no other. The fact that Atty. Nolasco was in the employ of the UP at the UPLB Legal Office
did not render the service upon him effective. It is settled that where a party has appeared by counsel,
service must be made upon such counsel.95 Service on the party or the party’s employee is not effective
because such notice is not notice in law.96 This is clear enough from Section 2, second paragraph, of Rule
13, Rules of Court, which explicitly states that: "If any party has appeared by counsel, service upon him
shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the
court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper
served upon him by the opposite side." As such, the period to appeal resumed only on June 1, 2002, the

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date following the service on May 31, 2002 upon the OLS in Diliman of the copy of the decision of the RTC,
not from the date when the UP was notified.97

Accordingly, the declaration of finality of the judgment of the RTC, being devoid of factual and legal bases,
is set aside.

Secondly, even assuming that the service upon Atty. Nolasco was valid and effective, such that the
remaining period for the UP to take a timely appeal would end by May 23, 2002, it would still not be
correct to find that the judgment of the RTC became final and immutable thereafter due to the notice of
appeal being filed too late on June 3, 2002.

In so declaring the judgment of the RTC as final against the UP, the CA and the RTC applied the rule
contained in the second paragraph of Section 3, Rule 41 of the Rules of Court to the effect that the filing
of a motion for reconsideration interrupted the running of the period for filing the appeal; and that the
period resumed upon notice of the denial of the motion for reconsideration. For that reason, the CA and
the RTC might not be taken to task for strictly adhering to the rule then prevailing.

However, equity calls for the retroactive application in the UP’s favor of the fresh-period rule that the
Court first announced in mid-September of 2005 through its ruling in Neypes v. Court of Appeals,98 viz:

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal
their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice
of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial
or motion for reconsideration.

The retroactive application of the fresh-period rule, a procedural law that aims "to regiment or make the
appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or resolution,"99 is impervious to any serious
challenge. This is because there are no vested rights in rules of procedure.100 A law or regulation is
procedural when it prescribes rules and forms of procedure in order that courts may be able to administer
justice.101 It does not come within the legal conception of a retroactive law, or is not subject of the general
rule prohibiting the retroactive operation of statues, but is given retroactive effect in actions pending and
undetermined at the time of its passage without violating any right of a person who may feel that he is
adversely affected.

We have further said that a procedural rule that is amended for the benefit of litigants in furtherance of
the administration of justice shall be retroactively applied to likewise favor actions then pending, as equity
delights in equality.102 We may even relax stringent procedural rules in order to serve substantial justice
and in the exercise of this Court’s equity jurisdiction.103 Equity jurisdiction aims to do complete justice in
cases where a court of law is unable to adapt its judgments to the special circumstances of a case because
of the inflexibility of its statutory or legal jurisdiction.104

It is cogent to add in this regard that to deny the benefit of the fresh-period rule to the UP would amount
to injustice and absurdity – injustice, because the judgment in question was issued on November 28, 2001
as compared to the judgment in Neypes that was rendered in 1998; absurdity, because parties receiving
notices of judgment and final orders issued in the year 1998 would enjoy the benefit of the fresh-period
rule but the later rulings of the lower courts like that herein would not.105

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Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the denial,
the UP’s filing on June 3, 2002 of the notice of appeal was not tardy within the context of the fresh-period
rule. For the UP, the fresh period of 15-days counted from service of the denial of the motion for
reconsideration would end on June 1, 2002, which was a Saturday. Hence, the UP had until the next
working day, or June 3, 2002, a Monday, within which to appeal, conformably with Section 1 of Rule 22,
Rules of Court, which holds that: "If the last day of the period, as thus computed, falls on a Saturday, a
Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working
day."

IV
Awards of monetary damages,
being devoid of factual and legal bases,
did not attain finality and should be deleted

Section 14 of Article VIII of the Constitution prescribes that express findings of fact and of law should be
made in the decision rendered by any court, to wit:

Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly
the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course
or denied without stating the legal basis therefor.

Implementing the constitutional provision in civil actions is Section 1 of Rule 36, Rules of Court, viz:

Section 1. Rendition of judgments and final orders. — A judgment or final order determining the merits of
the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the
facts and the law on which it is based, signed by him, and filed with the clerk of the court. (1a)

The Constitution and the Rules of Court apparently delineate two main essential parts of a judgment,
namely: the body and the decretal portion. Although the latter is the controlling part,106 the importance
of the former is not to be lightly regarded because it is there where the court clearly and distinctly states
its findings of fact and of law on which the decision is based. To state it differently, one without the other
is ineffectual and useless. The omission of either inevitably results in a judgment that violates the letter
and the spirit of the Constitution and the Rules of Court.

The term findings of fact that must be found in the body of the decision refers to statements of fact, not
to conclusions of law.107 Unlike in pleadings where ultimate facts alone need to be stated, the Constitution
and the Rules of Court require not only that a decision should state the ultimate facts but also that it
should specify the supporting evidentiary facts, for they are what are called the findings of fact.

The importance of the findings of fact and of law cannot be overstated. The reason and purpose of the
Constitution and the Rules of Court in that regard are obviously to inform the parties why they win or
lose, and what their rights and obligations are. Only thereby is the demand of due process met as to the
parties. As Justice Isagani A. Cruz explained in Nicos Industrial Corporation v. Court of Appeals:108

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It is a requirement of due process that the parties to a litigation be informed of how it was decided, with
an explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot
simply say that judgment is rendered in favor of X and against Y and just leave it at that without any
justification whatsoever for its action. The losing party is entitled to know why he lost, so he may appeal
to a higher court, if permitted, should he believe that the decision should be reversed. A decision that
does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the
dark as to how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint
the possible errors of the court for review by a higher tribunal.

Here, the decision of the RTC justified the grant of actual and moral damages, and attorney’s fees in the
following terse manner, viz:

xxx The Court is not unmindful that due to defendants’ unjustified refusal to pay their outstanding
obligation to plaintiff, the same suffered losses and incurred expenses as he was forced to re-mortgage
his house and lot located in Quezon City to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary
obligations in the form of interest and penalties incurred in the course of the construction of the subject
project.109

The statement that "due to defendants’ unjustified refusal to pay their outstanding obligation to plaintiff,
the same suffered losses and incurred expenses as he was forced to re-mortgage his house and lot located
in Quezon City to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the form of
interest and penalties incurred in the course of the construction of the subject project" was only a
conclusion of fact and law that did not comply with the constitutional and statutory prescription. The
statement specified no detailed expenses or losses constituting the P 5,716,729.00 actual damages
sustained by Stern Builders in relation to the construction project or to other pecuniary hardships. The
omission of such expenses or losses directly indicated that Stern Builders did not prove them at all, which
then contravened Article 2199, Civil Code, the statutory basis for the award of actual damages, which
entitled a person to an adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. As such, the actual damages allowed by the RTC, being bereft of factual support, were
speculative and whimsical. Without the clear and distinct findings of fact and law, the award amounted
only to an ipse dixit on the part of the RTC,110 and did not attain finality.

There was also no clear and distinct statement of the factual and legal support for the award of moral
damages in the substantial amount of P 10,000,000.00. The award was thus also speculative and
whimsical. Like the actual damages, the moral damages constituted another judicial ipse dixit, the
inevitable consequence of which was to render the award of moral damages incapable of attaining finality.
In addition, the grant of moral damages in that manner contravened the law that permitted the recovery
of moral damages as the means to assuage "physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury."111 The
contravention of the law was manifest considering that Stern Builders, as an artificial person, was
incapable of experiencing pain and moral sufferings.112 Assuming that in granting the substantial amount
of P 10,000,000.00 as moral damages, the RTC might have had in mind that dela Cruz had himself suffered
mental anguish and anxiety. If that was the case, then the RTC obviously disregarded his separate and
distinct personality from that of Stern Builders.113 Moreover, his moral and emotional sufferings as the
President of Stern Builders were not the sufferings of Stern Builders. Lastly, the RTC violated the basic
principle that moral damages were not intended to enrich the plaintiff at the expense of the defendant,
but to restore the plaintiff to his status quo ante as much as possible. Taken together, therefore, all these
considerations exposed the substantial amount of P 10,000,000.00 allowed as moral damages not only to

211
be factually baseless and legally indefensible, but also to be unconscionable, inequitable and
unreasonable.

Like the actual and moral damages, the P 150,000.00, plus P 1,500.00 per appearance, granted as
attorney’s fees were factually unwarranted and devoid of legal basis. The general rule is that a successful
litigant cannot recover attorney’s fees as part of the damages to be assessed against the losing party
because of the policy that no premium should be placed on the right to litigate.114 Prior to the effectivity
of the present Civil Code, indeed, such fees could be recovered only when there was a stipulation to that
effect. It was only under the present Civil Code that the right to collect attorney’s fees in the cases
mentioned in Article 2208115 of the Civil Code came to be recognized.116 Nonetheless, with attorney’s fees
being allowed in the concept of actual damages,117 their amounts must be factually and legally justified in
the body of the decision and not stated for the first time in the decretal portion.118 Stating the amounts
only in the dispositive portion of the judgment is not enough;119 a rendition of the factual and legal
justifications for them must also be laid out in the body of the decision.120

That the attorney’s fees granted to the private respondents did not satisfy the foregoing requirement
suffices for the Court to undo them.121 The grant was ineffectual for being contrary to law and public
policy, it being clear that the express findings of fact and law were intended to bring the case within the
exception and thereby justify the award of the attorney’s fees. Devoid of such express findings, the award
was a conclusion without a premise, its basis being improperly left to speculation and conjecture.122

Nonetheless, the absence of findings of fact and of any statement of the law and jurisprudence on which
the awards of actual and moral damages, as well as of attorney’s fees, were based was a fatal flaw that
invalidated the decision of the RTC only as to such awards. As the Court declared in Velarde v. Social
Justice Society,123 the failure to comply with the constitutional requirement for a clear and distinct
statement of the supporting facts and law "is a grave abuse of discretion amounting to lack or excess of
jurisdiction" and that "(d)ecisions or orders issued in careless disregard of the constitutional mandate are
a patent nullity and must be struck down as void."124 The other item granted by the RTC (i.e., P 503,462.74)
shall stand, subject to the action of the COA as stated herein.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the
decision of the Court of Appeals under review; ANNULS the orders for the garnishment of the funds of
the University of the Philippines and for the release of the garnished amount to Stern Builders Corporation
and Servillano dela Cruz; and DELETES from the decision of the Regional Trial Court dated November 28,
2001 for being void only the awards of actual damages of P 5,716,729.00, moral damages
of P 10,000,000.00, and attorney's fees of P 150,000.00, plus P 1,500.00 per appearance, in favor of Stern
Builders Corporation and Servillano dela Cruz.

The Court ORDERS Stem Builders Corporation and Servillano dela Cruz to redeposit the amount
of P 16,370,191.74 within 10 days from receipt of this decision.

Costs of suit to be paid by the private respondents.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

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G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S.
INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan,
HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno,
JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A.
GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the
President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON
JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS
M. ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL
RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of
Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces.
Pacific and Balikatan 2013 Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules
of Procedure for Environmental Cases (Rules), involving violations of environmental laws and regulations
in relation to the grounding of the US military ship USS Guardian over the Tubbataha Reefs.

Factual Background

The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which
means "long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll
and the south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of
the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island
municipality of Palawan.1

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by
President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers
southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global center of
marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines' oldest ecosystems,

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containing excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for internationally threatened and endangered marine
species. UNESCO cited Tubbataha's outstanding universal value as an important and significant natural
habitat for in situ conservation of biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional natural beauty and aesthetic importance.2

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha
Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally
significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs
into perpetuity for the enjoyment of present and future generations." Under the "no-take" policy, entry
into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and disturbing the resources within the TRNP. The law
likewise created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the
US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit the
territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic
Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia.
On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side
of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine was injured in
the incident, and there have been no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the
incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a
meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States will
provide appropriate compensation for damage to the reef caused by the ship."6 By March 30, 2013, the
US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition
agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific
and Balikatan 2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del
Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast
Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine respondents."

The Petition

214
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause
and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology. They
also seek a directive from this Court for the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing
resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,

a. Order Respondents and any person acting on their behalf, to cease and desist all operations
over the Guardian grounding incident;

b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer
zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability schemes for breaches of those duties, and require
Respondents to assume responsibility for prior and future environmental damage in general, and
environmental damage under the Visiting Forces Agreement in particular.

d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and indigenous communities near or around the TRNP
but away from the damaged site and an additional buffer zone;

2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;

3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v.
Romulo, "to forthwith negotiate with the United States representatives for the appropriate
agreement on [environmental guidelines and environmental accountability] under Philippine
authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal
proceedings against erring officers and individuals to the full extent of the law, and to make such
proceedings public;

215
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over
erring U.S. personnel under the circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reef on terms and conditions no less
severe than those applicable to other States, and damages for personal injury or death, if such
had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and delivery of objects connected with
the offenses related to the grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify each other of the
disposition of all cases, wherever heard, related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post
salvage plan or plans, including cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;

h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the
Local Government Code and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust
Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding
of the Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among
other similar grounding incidents;

k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency
and accountability such environmental damage assessment, valuation, and valuation methods, in
all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical support to
the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces Agreement and
the Mutual Defense Treaty to consider whether their provisions allow for the exercise of erga
omnes rights to a balanced and healthful ecology and for damages which follow from any violation
of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the
damaged areas of TRNP;

o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the
Visiting Forces Agreement unconstitutional for violating equal protection and/or for violating the

216
 preemptory norm of nondiscrimination incorporated as part of the law of the land under Section
2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and

4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are
just and equitable under the premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte against the US respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular inspection and
production orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ
of Kalikasan have become fait accompli as the salvage operations on the USS Guardian were already
completed; (2) the petition is defective in form and substance; (3) the petition improperly raises issues
involving the VFA between the Republic of the Philippines and the United States of America; and ( 4) the
determination of the extent of responsibility of the US Government as regards the damage to the
Tubbataha Reefs rests exdusively with the executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.

Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's
personal and substantial interest in a case where he has sustained or will sustain direct injury as a result"
of the act being challenged, and "calls for more than just a generalized grievance."11 However, the rule on
standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary
citizens, taxpayers and legislators when the public interest so requires, such as when the subject matter
of the controversy is of transcendental importance, of overreaching significance to society, or of
paramount public interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced
and healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in
the fundamental law." We declared that the right to a balanced and healthful ecology need not be written
in the Constitution for it is assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of transcendental importance with intergenerational
implications.1âwphi1 Such right carries with it the correlative duty to refrain from impairing the
environment.14

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can
do so in representation of their own and future generations. Thus:

217
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end
that their exploration, development and utilization be equitably accessible to the present a:: well as future
generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm
and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same time, the performance of
their obligation to ensure the protection of that right for the generations to come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet
unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The
provision on citizen suits in the Rules "collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature."16

Having settled the issue of locus standi, we shall address the more fundamental question of whether this
Court has jurisdiction over the US respondents who did not submit any pleading or manifestation in this
case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability
of the State,17 is expressly provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as
follows:

The rule that a state may not be sued without its consent, now · expressed in Article XVI, Section 3, of the
1987 Constitution, is one of the generally accepted principles of international law that we have adopted
as part of the law of our land under Article II, Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice
Holmes that ''there can be no legal right against the authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the enforcement
of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals

218
and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a
celebrated case, "unduly vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable
to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. The rule is that if the judgment against such officials will require the state itself to perform
an affirmative act to satisfy the same,. such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as against the state itself although it has not
been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move
to dismiss the comp.taint on the ground that it has been filed without its consent.19 (Emphasis supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states
from the jurisdiction of local courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit and,
with the emergence of democratic states, made to attach not just to the person of the head of state, or
his representative, but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a
suit arc those of a foreign government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing
the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim -par in parem, non habet imperium -that all states are soverr~ign equals
and cannot assert jurisdiction over one another. The implication, in broad terms, is that if the judgment
against an official would rec 1uire the state itself to perform an affirmative act to satisfy the award, such
as the appropriation of the amount needed to pay the damages decreed against him, the suit must be
regarded as being against the state itself, although it has not been formally impleaded.21(Emphasis
supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of territorial jurisdiction.22

In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino
employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers
of the US Air Force, and was eventually dismissed from his employment when he was charged in court for
violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the military
officers, the latter moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition
filed before this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official functions when they conducted the buy-bust

219
operation against the complainant and thereafter testified against him at his trial. It follows that for
discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of another
State without the former's consent or waiver has evolved into a restrictive doctrine which distinguishes
sovereign and governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure
gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts Jure imperii.
The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs.24

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:

It is a different matter where the public official is made to account in his capacity as such for acts contrary
to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal
acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of the State from
suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act for the State, he violates or
invades the personal and property rights of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will
not apply and may not be invoked where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government
is removed the moment they are sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in him. It is a well-settled principle
of law that a public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and supervision over the USS Guardian and its crew.
The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself. The principle of State immunity therefore
bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused
damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy sovereign
immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this

220
rule in cases where they fail to comply with the rules and regulations of the coastal State regarding
passage through the latter's internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-
standing policy the US considers itself bound by customary international rules on the "traditional uses of
the oceans" as codified in UNCLOS, as can be gleaned from previous declarations by former Presidents
Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with respect
to the uses of the oceans."28 The UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's
marine waters is one of the oldest customary principles of international law.30 The UNCLOS gives to the
coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives
coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located.31

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil.32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.

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Article 32
Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention
affects the immunities of warships and other government ships operated for non-commercial purposes.
(Emphasis supplied.) A foreign warship's unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the above provisions may apply. But what if the
offending warship is a non-party to the UNCLOS, as in this case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this
the US, the world's leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In a remarkable, multilateral effort to induce U.S.
membership, the bulk of UNCLOS member states cooperated over the succeeding decade to revise the
objection.able provisions. The revisions satisfied the Clinton administration, which signed the revised Part
XI implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the
Part XI implementing agreement to the Senate requesting its advice and consent. Despite consistent
support from President Clinton, each of his successors, and an ideologically diverse array of stakeholders,
the Senate has since withheld the consent required for the President to internationally bind the United
States to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung by significant pockets of political ambivalence over
U.S. participation in international institutions. Most recently, 111 th Congress SFRC Chairman Senator
John Kerry included "voting out" UNCLOS for full Senate consideration among his highest priorities. This
did not occur, and no Senate action has been taken on UNCLOS by the 112th Congress.34

Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983
that the US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and freedom of the United States and others under
international law are recognized by such coastal states", and President Clinton's reiteration of the US
policy "to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the oceans
and to encourage other countries to do likewise." Since Article 31 relates to the "traditional uses of the
oceans," and "if under its policy, the US 'recognize[s] the rights of the other states in the waters off their
coasts,"' Justice Carpio postulates that "there is more reason to expect it to recognize the rights of other
states in their internal waters, such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS
was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers
the oceans and deep seabed commonly owned by mankind," pointing out that such "has nothing to do
with its [the US'] acceptance of customary international rules on navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the
ratification of the UNCLOS, as shown by the following statement posted on its official website:

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The Convention is in the national interest of the United States because it establishes stable maritime
zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal nations
from expanding their own maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ
government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by enhancing the ability
of the US to assert its sovereign rights over the resources of one of the largest continental shelves in the
world. Further, it is the Law of the Sea Convention that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal states to conserve
and manage the natural resources in this Zone.35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the
US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea.
We thus expect the US to bear "international responsibility" under Art. 31 in connection with the USS
Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that
our long-time ally and trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the damage caused by
its warship while transiting our internal waters. Much less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine environment as provided in Article 197,
viz:

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention, for the protection and
preservation of the marine environment, taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the
said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating
the.latter's territorial sea, the flag States shall be required to leave the territorial '::;ea immediately if they
flout the laws and regulations of the Coastal State, and they will be liable for damages caused by their
warships or any other government vessel operated for non-commercial purposes under Article 31.

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the US have statutorily waived their immunity to any
action. Even under the common law tort claims, petitioners asseverate that the US respondents are liable
for negligence, trespass and nuisance.

We are not persuaded.

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The VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines to promote "common security interests" between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and further defines the rights of the
United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment, materials and supplies.36 The invocation of US
federal tort laws and even common law is thus improper considering that it is the VF A which governs
disputes involving US military ships and crew navigating Philippine waters in pursuance of the objectives
of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal case against a person charged with a violation of an
environmental law is to be filed separately:

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan
shall not preclude the filing of separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VF A to US personnel who may be found responsible for the grounding of the
USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. We also
find it unnecessary at this point to determine whether such waiver of State immunity is indeed absolute.
In the same vein, we cannot grant damages which have resulted from the violation of environmental laws.
The Rules allows the recovery of damages, including the collection of administrative fines under R.A. No.
10067, in a separate civil suit or that deemed instituted with the criminal action charging the same
violation of an environmental law.37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of
Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court
shall render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the
performance of a duty in violation of environmental laws resulting in environmental destruction
or damage;

(b) Directing the respondent public official, govemment agency, private person or entity to
protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to
monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to
make periodic reports on the execution of the final judgment; and

224
 (e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology
or to the protection, preservation, rehabilitation or restoration of the environment, except the
award of damages to individual petitioners. (Emphasis supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has become moot in the
sense that the salvage operation sought to be enjoined or restrained had already been accomplished
when petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents
to protect and rehabilitate the coral reef stn icture and marine habitat adversely affected by the grounding
incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful of the fact that the US and
Philippine governments both expressed readiness to negotiate and discuss the matter of compensation
for the damage caused by the USS Guardian. The US Embassy has also declared it is closely coordinating
with local scientists and experts in assessing the extent of the damage and appropriate methods of
rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned
from the following provisions, mediation and settlement are available for the consideration of the parties,
and which dispute resolution methods are encouraged by the court, to wit:

RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the
parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their
counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for
mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of
referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a
preliminary conference for the following purposes:

(a) To assist the parties in reaching a settlement;

xxxx

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath,
and they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the agreement between the parties in accordance with law,

225
morals, public order and public policy to protect the right of the people to a balanced and healthful
ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle
in accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring
supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port
Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid
the State of Hawaii $8.5 million in settlement over coral reef damage caused by the grounding.38

To underscore that the US government is prepared to pay appropriate compensation for the damage
caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation
of a US interdisciplinary scientific team which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-
based marine scientists." The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-
governmental organizations, and scientific experts from Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief
that may be obtained under a judgment rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that purpose subject to the control of the
court.1âwphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations
with another State in the context of common security interests under the VFA. It is settled that "[t]he
conduct of the foreign relations of our government is committed by the Constitution to the executive and
legislative-"the political" --departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of
the VFA and to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in
by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified
by the duly authorized representative of the United States government. The VF A being a valid and binding

226
agreement, the parties are required as a matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is not the proper remedy to assail the constitutionality
of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is
hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing
order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make
different choices – choices we would not make for ourselves, choices we may disapprove of, even choices
that may shock or offend or anger us. However, choices are not to be legally prohibited merely because
they are different, and the right to disagree and debate about important questions of public policy is a
core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and
respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically
opposed is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what
is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes,
however, that practical solutions are preferable to ideological stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live
together, if not harmoniously, then, at least, civilly.

Factual Background

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This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of
the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
represented sector that is particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied
with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission
on Elections.6 Ang Ladlad laid out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their

sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender, of the same gender, or more than
one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into
that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in
their lust one toward another; men with men working that which is unseemly, and receiving in themselves
that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

228
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of
those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to
be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are not contrary to
law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that
‘Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public
policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of
prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment
and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and edicts.

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 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which
are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it "or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency
of the government, ours too is the State’s avowed duty under Section 13, Article II of the Constitution to
protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for
the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed
sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit the nation
as a whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race.
But that is not the intention of the framers of the law. The party-list system is not a tool to advocate
tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is
a tool for the realization of aspirations of marginalized individuals whose interests are also the nation’s –
only that their interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations
and transgender identities is beneficial to the nation, its application for accreditation under the party-list
system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental

230
right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the
social or legal equality of homosexual relations," as in the case of race or religion or belief.

xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is
there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being
adopted as moral parameters and precepts are generally accepted public morals. They are possibly
religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into
society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or
proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships or relationships by gays
and lesbians who are already of age’ It is further indicated in par. 24 of the Petition which waves for the
record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000.
Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x
x which shocks, defies or disregards decency or morality x x x." These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG
filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12 Somewhat
surprisingly, the OSG later filed a Comment in support of petitioner’s application.13 Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we required it to file its own comment.14 The
COMELEC, through its Law Department, filed its Comment on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January
12, 2010, effective immediately and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed Resolutions.16

231
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards and principles of the Constitution,
the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political
Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on
February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also
claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of the Philippines’
international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying petitioner’s
application for registration since there was no basis for COMELEC’s allegations of immorality. It also
opined that LGBTs have their own special interests and concerns which should have been recognized by
the COMELEC as a separate classification. However, insofar as the purported violations of petitioner’s
freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been
no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution
and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national
existence contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the
sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a sector is specifically

232
enumerated, but whether a particular organization complies with the requirements of the Constitution
and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it
had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it
said that it or any of its nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner’s alleged non-existence were already available to the COMELEC
prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated
afterthought, a change in respondent’s theory, and a serious violation of petitioner’s right to procedural
due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial
petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged
that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it
had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion
group.22 Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

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§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

234
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that
they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s findings are to
be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad’s principal
place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated allegation
of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines
in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls
for is "government neutrality in religious matters."24 Clearly, "governmental reliance on religious
justification is inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the
non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public
order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise,
if government relies upon religious beliefs in formulating public policies and morals, the resulting policies
and morals would require conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens.1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because
it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a moral disapprobation punishable
by law. After all, they might also be adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law
could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable
and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing

235
the religious nature of the Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent
neutrality recognizes that government must pursue its secular goals and interests but at the same time
strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC
argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because
of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with individuals of the same gender
is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society
without a set of moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind
this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation,
even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall
that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these
"generally accepted public morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that "there should have been a finding by the COMELEC that the group’s members
have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between
thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would
have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not
the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection
is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of
society. We, of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of
an argument or another, without bothering to go through the rigors of legal reasoning and explanation.
In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.

236
We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance,
a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It
hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang
Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as
a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates
our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person
be denied equal protection of the laws," courts have never interpreted the provision as an absolute
prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar
persons."33 The equal protection clause guarantees that no person or class of persons shall be deprived
of the same protection of laws which is enjoyed by other persons or other classes in the same place and
in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect
class, we will uphold the classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared
that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the
‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if
we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here –
that is, moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause. The COMELEC’s differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored
group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same
interest in participating in the party-list system on the same basis as other political parties similarly
situated. State intrusion in this case is equally burdensome. Hence, laws of general application should

237
apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis
as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar
as the party-list system is concerned does not imply that any other law distinguishing between
heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the purposes of the equal protection
clause.38 We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted
and impermissible classification not justified by the circumstances of the case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade
society of the validity of its position through normal democratic means.39 It is in the public square that
deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment
has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle
in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized
into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it
specifies – including protection of religious freedom "not only for a minority, however small – not only for
a majority, however large – but for each of us" – the majority imposes upon itself a self-denying ordinance.
It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better
reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country.
It follows that both expressions concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European

238
and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign and international
texts.42 To the extent that there is much to learn from other jurisdictions that have reflected on the issues
we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition
of a particular expression of opinion, public institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and unpleasantness that always accompany
an unpopular viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its
vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a
political party may campaign for a change in the law or the constitutional structures of a state if it uses
legal and democratic means and the changes it proposes are consistent with democratic principles. The
ECHR has emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the
majority of the population.44 A political group should not be hindered solely because it seeks to publicly
debate controversial political issues in order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the
same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration the values of other members of the
community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis
of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there
has been no restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.

239
xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take
part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right
to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-
list system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and participating on an equal
basis in the political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human
rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane
world order. For individuals and groups struggling with inadequate structural and governmental support,
international human rights norms are particularly significant, and should be effectively enforced in
domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to
electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation
is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to
include "sexual orientation."48Additionally, a variety of United Nations bodies have declared

240
discrimination on the basis of sexual orientation to be prohibited under various international
agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article
2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs
and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct
of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever
form of constitution or government is in force, the Covenant requires States to adopt such legislative and
other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the
rights it protects. Article 25 lies at the core of democratic government based on the consent of the people
and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties
should indicate and explain the legislative provisions which exclude any group or category of persons from
elective office.50

241
We stress, however, that although this Court stands willing to assume the responsibility of giving effect to
the Philippines’ international law obligations, the blanket invocation of international law is not the
panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual Orientation and Gender
Identity),51 which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International Court of
Justice.52 Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or
demands is automatically a human right. This is not an arbitrary human intervention that may be added
to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much
broader context of needs that identifies many social desires as rights in order to further claims that
international law obliges states to sanction these innovations. This has the effect of diluting real human
rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no
longer controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated
by various international law professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the
"soft law" nomenclature, i.e., international law is full of principles that promote international cooperation,
harmony, and respect for human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in
opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge
that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission
on Elections is directed to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

242
 ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE P. PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO
Chief Justice

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children,
LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT
CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

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

243
G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando
M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A.
Tansingco & Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese
Antonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C.
Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves
and on behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey
C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho
& Zara Z. Racho for themselves and on behalf of their minor children Margarita Racho, Mikaela Racho,
Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for
themselves and on behalf of their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi
Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and
on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah
Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina
R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic
Planning Secretary and NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN,
represented by its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE
CORPORATION, represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES,
represented by its President Donato Marcos, Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 204988

244
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and
in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D.,
as member of the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G.
IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO
N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior
and Local Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes,
Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio
O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare
and Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development
Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.

245
x---------------------------------x

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE
MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL
ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of
Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON. MANUELA.
ROXAS II, Secretary of the Department of Interior and Local Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in
her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO
L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO
N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior
and Local Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION, Respondents.

246
x---------------------------------x

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and
Management, Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs
, and to live as he believes he ought to live, consistent with the liberty of others and with the common
good."1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed country,
leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While governmental

247
policies have been geared towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every member of society. The
government continues to tread on a trying path to the realization of its very purpose, that is, the general
welfare of the Filipino people and the development of the country as a whole. The legislative branch, as
the main facet of a representative government, endeavors to enact laws and policies that aim to remedy
looming societal woes, while the executive is closed set to fully implement these measures and bring
concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant is the judicial
branch, oftentimes regarded as an inert governmental body that merely casts its watchful eyes on clashing
stakeholders until it is called upon to adjudicate. Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to interpret legislation vis-a-vis the most vital and
enduring principle that holds Philippine society together - the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the subjects
and their perceived consequences freely circulate in various media. From television debates2 to sticker
campaigns,3 from rallies by socio-political activists to mass gatherings organized by members of the
clergy4 - the clash between the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society. Despite calls to withhold
support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood
and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2) petitions- in-
intervention, to wit:

(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely
Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of
their minor children; and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano
S. Avila, in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace
Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);

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 (7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians
Inc.,18 and several others19 in their capacities as citizens and taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens
and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad
and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet
unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of the Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens and taxpayers and on behalf of its associates who
are members of the Bar (Pro-Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa,
Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens,
taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in
their capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and
several others,31 in their capacities as citizens (CFC);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their
capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a
taxpayer (Alcantara); and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited

political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH
Law on the following GROUNDS:

• The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding
its declared policy against abortion, the implementation of the RH Law would authorize the
purchase of hormonal contraceptives, intra-uterine devices and injectables which are abortives,
in violation of Section 12, Article II of the Constitution which guarantees protection of both the
life of the mother and the life of the unborn from conception.35

• The RH Law violates the right to health and the right to protection against hazardous products.
The petitioners posit that the RH Law provides universal access to contraceptives which are
hazardous to one's health, as it causes cancer and other health problems.36

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 • The RH Law violates the right to religious freedom. The petitioners contend that the RH Law
violates the constitutional guarantee respecting religion as it authorizes the use of public funds
for the procurement of contraceptives. For the petitioners, the use of public funds for purposes
that are believed to be contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients who
seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs and
convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are specifically charged with the
duty to implement these Rules, cannot be considered as conscientious objectors.40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that
the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest test" to
justify the regulation of the right to free exercise of religion and the right to free speech.42

• The RH Law violates the constitutional provision on involuntary servitude. According to the
petitioners, the RH Law subjects medical practitioners to involuntary servitude because, to be
accredited under the PhilHealth program, they are compelled to provide forty-eight (48) hours of
pro bona services for indigent women, under threat of criminal prosecution, imprisonment and
other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner
would effectively be forced to render reproductive health services since the lack of PhilHealth
accreditation would mean that the majority of the public would no longer be able to avail of the
practitioners services.44

• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law
discriminates against the poor as it makes them the primary target of the government program
that promotes contraceptive use. The petitioners argue that, rather than promoting reproductive
health among the poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45

• The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In
imposing the penalty of imprisonment and/or fine for "any violation," it is vague because it does
not define the type of conduct to be treated as "violation" of the RH Law.46

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In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing
from them (the people) the right to manage their own affairs and to decide what kind of health facility
they shall be and what kind of services they shall offer."47 It ignores the management prerogative inherent
in corporations for employers to conduct their affairs in accordance with their own discretion and
judgment.

• The RH Law violates the right to free speech. To compel a person to explain a full range of family
planning methods is plainly to curtail his right to expound only his own preferred way of family
planning. The petitioners note that although exemption is granted to institutions owned and
operated by religious groups, they are still forced to refer their patients to another healthcare
facility willing to perform the service or procedure.48

• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is
contended that the RH Law providing for mandatory reproductive health education intrudes upon
their constitutional right to raise their children in accordance with their beliefs.49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of spouses
to mutually decide on matters pertaining to the overall well-being of their family. In the same breath, it is
also claimed that the parents of a child who has suffered a miscarriage are deprived of parental authority
to determine whether their child should use contraceptives.50

• The RH Law violates the constitutional principle of non-delegation of legislative authority. The
petitioners question the delegation by Congress to the FDA of the power to determine whether a
product is non-abortifacient and to be included in the Emergency Drugs List (EDL).51

• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of
the Constitution.52

• The RH Law violates Natural Law.53

• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for
reproductive health measures at the local government level and the ARMM, infringes upon the
powers devolved to LGUs and the ARMM under the Local Government Code and R.A . No. 9054.54

Various parties also sought and were granted leave to file their respective comments-in-intervention in
defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which
commented on the petitions in behalf of the respondents,55 Congressman Edcel C. Lagman,56 former
officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave
to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,

251
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo
Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a period of
one hundred and twenty (120) days, or until July 17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine
and/or identify the pertinent issues raised by the parties and the sequence by which these issues were to
be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases
were heard on oral argument. On July 16, 2013, the SQAO was ordered extended until further orders of
the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days
and, at the same time posed several questions for their clarification on some contentions of the parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution
of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729
entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices." Although contraceptive drugs and devices were allowed, they could not be sold, dispensed or
distributed "unless such sale, dispensation and distribution is by a duly licensed drug store or
pharmaceutical company and with the prescription of a qualified medical practitioner."65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was provided
that "no drug or chemical product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to any person without a proper
prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized
that the population problem should be considered as the principal element for long-term economic
development, enacted measures that promoted male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved on August 16, 1971, entitled "An Act
Establishing a National Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a broad educational program;
safe and effective means will be provided to couples desiring to space or limit family size; mortality and
morbidity rates will be further reduced."

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To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree.
(P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad
educational program," provided "family planning services as a part of over-all health care," and made
"available all acceptable methods of contraception, except abortion, to all Filipino citizens desirous of
spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved from being
a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development.70 Thus, on August
14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among others,
mandated the State to provide for comprehensive health services and programs for women, including
family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of the
country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and the marginalized, access and information to the full
range of modem family planning methods, and to ensure that its objective to provide for the peoples'
right to reproductive health be achieved. To make it more effective, the RH Law made it mandatory for
health providers to provide information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws
on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in
particular, argues that the government sponsored contraception program, the very essence of the RH
Law, violates the right to health of women and the sanctity of life, which the State is mandated to protect
and promote. Thus, ALFI prays that "the status quo ante - the situation prior to the passage of the RH Law
- must be maintained."73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As provided under
Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are
prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners find
deplorable and repugnant under the RH Law is the role that the State and its agencies - the entire
bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the contraception program to the fullest extent possible
using taxpayers' money. The State then will be the funder and provider of all forms of family planning

253
methods and the implementer of the program by ensuring the widespread dissemination of, and universal
access to, a full range of family planning methods, devices and supplies.74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and
refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

254
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court
to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the
legislative and political wisdom of Congress and respect the compromises made in the crafting of the RH
Law, it being "a product of a majoritarian democratic process"75 and "characterized by an inordinate
amount of transparency."76 The OSG posits that the authority of the Court to review social legislation like
the RH Law by certiorari is "weak," since the Constitution vests the discretion to implement the
constitutional policies and positive norms with the political departments, in particular, with Congress.77 It
further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the
remedies of certiorari and prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet to
distribute reproductive health devices that are abortive. It claims that the RH Law cannot be challenged
"on its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the Executive and the
Legislature, it is often sought that the Court temper its exercise of judicial power and accord due respect
to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government, which obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere.81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the
Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and (c) the
judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the allotment of powers
among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which
imposes upon the courts proper restraint, born of the nature of their functions and of their respect for
the other branches of government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86

It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the same time, allows it to cross
the line of separation - but only at a very limited and specific point - to determine whether the acts of the
executive and the legislative branches are null because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or expediency of the

255
RH Law, it may do so where an attendant unconstitutionality or grave abuse of discretion results.89 The
Court must demonstrate its unflinching commitment to protect those cherished rights and principles
embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be
it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier point.
The Court may pass upon the constitutionality of acts of the legislative and the executive branches, since
its duty is not to review their collective wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as mandated of them by the Constitution. If after
said review, the Court finds no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review.90 This is in line with Article VIII, Section 1 of the Constitution which
expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal v. COMELEC,92 Aldaba
v. COMELEC,93Magallona v. Ermita,94 and countless others. In Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this Court (as in the instant case),
it becomes a legal issue which the Court is bound by constitutional mandate to decide. [Emphasis
supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of powers
among the three great departments of government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial review is the chief, indeed the only,
medium of participation - or instrument of intervention - of the judiciary in that balancing operation.95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to
rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule that the
power of judicial review is limited by four exacting requisites, viz : (a) there must be an actual case or

256
controversy; (b) the petitioners must possess locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy
because the RH Law has yet to be implemented.97 They claim that the questions raised by the petitions
are not yet concrete and ripe for adjudication since no one has been charged with violating any of its
provisions and that there is no showing that any of the petitioners' rights has been adversely affected by
its operation.98 In short, it is contended that judicial review of the RH Law is premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable-definite and concrete,
touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must
show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or issue. There ought to be
an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A question
is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has
then been accomplished or performed by either branch before a court may come into the picture, and
the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is immediately in danger of sustaining some
direct injury as a result of the act complained of102

In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD)
was put in question, it was argued that the Court has no authority to pass upon the issues raised as there
was yet no concrete act performed that could possibly violate the petitioners' and the intervenors' rights.
Citing precedents, the Court ruled that the fact of the law or act in question being not yet effective does
not negate ripeness. Concrete acts under a law are not necessary to render the controversy ripe. Even a
singular violation of the Constitution and/or the law is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for
judicial determination. Considering that the RH Law and its implementing rules have already taken effect
and that budgetary measures to carry out the law have already been passed, it is evident that the subject
petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the
Judiciary to settle the dispute.104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations thereof,

257
particularly public health officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that
the RH Law cannot be challenged "on its face" as it is not a speech regulating measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is
one that is launched to assail the validity of statutes concerning not only protected speech, but also all
other rights in the First Amendment.106 These include religious freedom, freedom of the press, and the
right of the people to peaceably assemble, and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious freedom, freedom of the press and peaceful
assembly are but component rights of the right to one's freedom of expression, as they are modes which
one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained,
albeit with some modifications. While this Court has withheld the application of facial challenges to strictly
penal statues,108 it has expanded its scope to cover statutes not only regulating free speech, but also those
involving religious freedom, and other fundamental rights.109 The underlying reason for this modification
is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by
the Fundamental Law not only to settle actual controversies involving rights which are legally demandable
and enforceable, but also 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.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with
its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive
branch of government, acting only when the Fundamental Law has been transgressed, to the detriment
of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends
that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be
enforced and applied against them,111 and the government has yet to distribute reproductive health
devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status
as citizens and taxpayers in establishing the requisite locus standi.

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Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party
has sustained or will sustain direct injury as a result of the challenged governmental act.113 It requires a
personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute grounded on a violation of the rights of third persons not
before the court. This rule is also known as the prohibition against third-party standing.115

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when
the public interest so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance
where serious constitutional questions are involved, the standing requirement may be relaxed and a suit
may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,118 ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders although they had only an indirect and general interest
shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied
challenge, still, the Court has time and again acted liberally on the locus s tandi requirement. It has
accorded certain individuals standing to sue, not otherwise directly injured or with material interest
affected by a Government act, provided a constitutional issue of transcendental importance is invoked.
The rule on locus standi is, after all, a procedural technicality which the Court has, on more than one
occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest, albeit they may not have been directly injured by the
operation of a law or any other government act. As held in Jaworski v. PAGCOR:119

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the technical
defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative need. This is in accordance with the
well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but
to facilitate and promote the administration of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench
and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects
the constitutional provisions on the right to life and health, the freedom of religion and expression and

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other constitutional rights. Mindful of all these and the fact that the issues of contraception and
reproductive health have already caused deep division among a broad spectrum of society, the Court
entertains no doubt that the petitions raise issues of transcendental importance warranting immediate
court adjudication. More importantly, considering that it is the right to life of the mother and the unborn
which is primarily at issue, the Court need not wait for a life to be taken away before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her child
is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory relief over
which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for prohibition under Rule 65,
over which it has original jurisdiction. Where the case has far-reaching implications and prays for
injunctive reliefs, the Court may consider them as petitions for prohibition under Rule 65.121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ),
Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them, being one
for reproductive health with responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population control measure.123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the country's
population. While it claims to save lives and keep our women and children healthy, it also promotes
pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full range of modem family
planning products and methods. These family planning methods, natural or modem, however, are clearly
geared towards the prevention of pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the
country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large
portion of the law, however, covers the dissemination of information and provisions on access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.

The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades
the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the provisions that refer

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to contraception or are related to it and the RH Law loses its very foundation.127 As earlier explained, "the
other positive provisions such as skilled birth attendance, maternal care including pre-and post-natal
services, prevention and management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v.
The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title
of the enactment language of such precision as to mirror, fully index or catalogue all the contents and the
minute details therein. The rule is sufficiently complied with if the title is comprehensive enough as to
include the general object which the statute seeks to effect, and where, as here, the persons interested
are informed of the nature, scope and consequences of the proposed law and its operation. Moreover,
this Court has invariably adopted a liberal rather than technical construction of the rule "so as not to
cripple or impede legislation." [Emphases supplied]

In this case, a textual analysis of the various provisions of the law shows that both "reproductive health"
and "responsible parenthood" are interrelated and germane to the overriding objective to control the
population growth. As expressed in the first paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to education and
information, and the right to choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that
the average person reading it would not be informed of the purpose of the enactment or put on inquiry
as to its contents, or which is misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or indication of the real subject
or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears
to the attainment of the goal of achieving "sustainable human development" as stated under its terms,
the Court finds no reason to believe that Congress intentionally sought to deceive the public as to the
contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn child under
Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130

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According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law
considers contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's
womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford protection to the fertilized
ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning
products and supplies, medical research shows that contraceptives use results in abortion as they operate
to kill the fertilized ovum which already has life.131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA)
to certify that the product or supply is not to be used as an abortifacient, the assailed legislation effectively
confirms that abortifacients are not prohibited. Also considering that the FDA is not the agency that will
actually supervise or administer the use of these products and supplies to prospective patients, there is
no way it can truthfully make a certification that it shall not be used for abortifacient purposes.133

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution
was simply the prohibition of abortion. They contend that the RH Law does not violate the Constitution
since the said law emphasizes that only "non-abortifacient" reproductive health care services, methods,
devices products and supplies shall be made accessible to the public.134

According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to various
studies and consultations with the World Health Organization (WHO) and other experts in the medical
field, it is asserted that the Court afford deference and respect to such a determination and pass judgment
only when a particular drug or device is later on determined as an abortive.135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of the
fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law specifically
provides that only contraceptives that do not prevent the implantation of the fertilized ovum are
allowed.136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life.137

Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore,
not a creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any
authority or the laws of men.

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In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of
recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation,
and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent fertilization,138 to the promotion of male vasectomy and
tubal ligation,139 and the ratification of numerous international agreements, the country has long
recognized the need to promote population control through the use of contraceptives in order to achieve
long-term economic development. Through the years, however, the use of contraceptives and other
family planning methods evolved from being a component of demographic management, to one centered
on the promotion of public health, particularly, reproductive health.140

This has resulted in the enactment of various measures promoting women's rights and health and the
overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine national population program
has always been grounded two cornerstone principles: "principle of no-abortion" and the "principle of
non-coercion."141 As will be discussed later, these principles are not merely grounded on administrative
policy, but rather, originates from the constitutional protection expressly provided to afford protection to
life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life begins is a scientific
and medical issue that should not be decided, at this stage, without proper hearing and evidence. During
the deliberation, however, it was agreed upon that the individual members of the Court could express
their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of Section
12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as
a basic autonomous social institution. It shall equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the support of the Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable because
before conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution
is mute as to any proscription prior to conception or when life begins. The problem has arisen because,
amazingly, there are quarters who have conveniently disregarded the scientific fact that conception is

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reckoned from fertilization. They are waving the view that life begins at implantation. Hence, the issue of
when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of
the female ovum by the male sperm.142 On the other side of the spectrum are those who assert that
conception refers to the "implantation" of the fertilized ovum in the uterus.143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation. It is a well-settled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where technical terms are employed. As
much as possible, the words of the Constitution should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean what
they say. Verba legis non est recedendum - from the words of a statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which
constitutional provisions are couched express the objective sought to be attained; and second, because
the Constitution is not primarily a lawyer's document but essentially that of the people, in whose
consciousness it should ever be present as an important condition for the rule of law to prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of
a viable zygote; the fertilization that results in a new entity capable of developing into a being like its
parents.145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under normal
conditions.146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first before he/she
could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life
of the unborn from conception, that the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as
death. [Emphases in the original]

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In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State
"has respect for human life at all stages in the pregnancy" and "a legitimate and substantial interest in
preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a
baby or a child.149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers regarding the
term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly
refers to the moment of "fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that
there is human life. x x x.150

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive.
First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins doing this
upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies itself
at a geometric rate in the continuous process of cell division. All these processes are vital signs of life.
Therefore, there is no question that biologically the fertilized ovum has life.

The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the
ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A chromosome
count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is
both alive and human, then, as night follows day, it must be human life. Its nature is human.151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:

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Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the
scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use
the simpler phrase "from the moment of conception."152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was
discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution,
without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own
admission, he would leave it to Congress to define when life begins. So, Congress can define life to begin
from six months after fertilization; and that would really be very, very, dangerous. It is now determined
by science that life begins from the moment of conception. There can be no doubt about it. So we should
not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the
questions I was going to raise during the period of interpellations but it has been expressed already. The
provision, as proposed right now states:

The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-called
contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred, the next
process is for the fertilized ovum to travel towards the uterus and to take root. What happens with some
contraceptives is that they stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if
we take the provision as it is proposed, these so called contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore,
would be unconstitutional and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are
already considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that
the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum.

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It is also apparent is that the Framers of the Constitution intended that to prohibit Congress from enacting
measures that would allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives
for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination of whether a contraceptive
device is an abortifacient is a question of fact which should be left to the courts to decide on based on
established evidence.155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an
abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the male
sperm and the female ovum, and those that similarly take action prior to fertilization should be deemed
non-abortive, and thus, constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would
like not only to protect the life of the unborn, but also the lives of the millions of people in the world by
fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic implications of
the term "protection of the life of the unborn from the moment of conception." I raised some of these
implications this afternoon when I interjected in the interpellation of Commissioner Regalado. I would like
to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn
yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the
intra-uterine device which actually stops the egg which has already been fertilized from taking route to
the uterus. So if we say "from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners
during the oral arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not
classified as abortifacients.157

Atty. Noche:

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Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:

Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here
Section 12, Article II, Your Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158

Medical Meaning

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That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and
Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant
a spermatozoon enters an ovum and forms a viable zygote."159

It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in the
Philippines, also concludes that human life (human person) begins at the moment of fertilization with the
union of the egg and the sperm resulting in the formation of a new individual, with a unique genetic
composition that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development begins after the
union of male and female gametes or germ cells during a process known as fertilization (conception).
Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon) with a
secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and
ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote,
is a large diploid cell that is the beginning, or primordium, of a human being."162

The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life
is a continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new,
genetically distinct human organism is thereby formed.... The combination of 23 chromosomes present in
each pronucleus results in 46 chromosomes in the zygote. Thus the diploid number is restored and the
embryonic genome is formed. The embryo now exists as a genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive
Health Bill (Responsible Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong
position that fertilization is sacred because it is at this stage that conception, and thus human life, begins.
Human lives are sacred from the moment of conception, and that destroying those new lives is never licit,
no matter what the purported good outcome would be. In terms of biology and human embryology, a
human being begins immediately at fertilization and after that, there is no point along the continuous line
of human embryogenesis where only a "potential" human being can be posited. Any philosophical, legal,
or political conclusion cannot escape this objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a
new human being commences at a scientifically well defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and independent of any specific ethical, moral, political,
or religious view of human life or of human embryos.164

Conclusion: The Moment of Conception is Reckoned from

Fertilization

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In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is that
a zygote is a human organism and that the life of a new human being commences at a scientifically well-
defined moment of conception, that is, upon fertilization.

For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and successive
stages in the reproductive process. They are not identical and synonymous."166 Citing a letter of the WHO,
he wrote that "medical authorities confirm that the implantation of the fertilized ovum is the
commencement of conception and it is only after implantation that pregnancy can be medically
detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not
pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46 chromosomes.168 Implantation has
been conceptualized only for convenience by those who had population control in mind. To adopt it would
constitute textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that
would prevent the implantation of the fetus at the uterine wall. It would be provocative and further
aggravate religious-based divisiveness.

It would legally permit what the Constitution proscribes - abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion. It
was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was captured in
the record of the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo Villegas,
the principal proponent of the protection of the unborn from conception, explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any
pro-abortion decision passed by the Supreme Court.169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that the
RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As pointed
out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the law to protect
to the fertilized ovum and that it should be afforded safe travel to the uterus for implantation.170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code,
which penalizes the destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

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Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

xxx.

(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies
that contribute to reproductive health and well-being by addressing reproductive health-related
problems. It also includes sexual health, the purpose of which is the enhancement of life and personal
relations. The elements of reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to make
other decisions concerning reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual health and reproductive
health: Provided, however, That reproductive health rights do not include abortion, and access to
abortifacients.

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or
issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to or is
inconsistent with the provisions of this Act including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb
upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization.
By using the word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but

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also those that induce abortion and those that induce the destruction of a fetus inside the mother's womb.
Thus, an abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum already has life and that the State has a bounden duty to
protect it. The conclusion becomes clear because the RH Law, first, prohibits any drug or device that
induces abortion (first kind), which, as discussed exhaustively above, refers to that which induces the
killing or the destruction of the fertilized ovum, and, second, prohibits any drug or device the fertilized
ovum to reach and be implanted in the mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted
in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life
only begins only at implantation, as Hon. Lagman suggests. It also does not declare either that protection
will only be given upon implantation, as the petitioners likewise suggest. Rather, it recognizes that: one,
there is a need to protect the fertilized ovum which already has life, and two, the fertilized ovum must be
protected the moment it becomes existent - all the way until it reaches and implants in the mother's
womb. After all, if life is only recognized and afforded protection from the moment the fertilized ovum
implants - there is nothing to prevent any drug or device from killing or destroying the fertilized ovum
prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH
Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at
implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning of life. It started earlier. And as defined by the RH
Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized ovum or
prevents the fertilized ovum to reach and be implanted in the mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product and
supply is made available on the condition that it is not to be used as an abortifacient" as empty as it is
absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be used as an
abortifacient, since the agency cannot be present in every instance when the contraceptive product or
supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives,
however, the Court finds that the proviso of Section 9, as worded, should bend to the legislative intent
and mean that "any product or supply included or to be included in the EDL must have a certification from
the FDA that said product and supply is made available on the condition that it cannot be used as

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abortifacient." Such a construction is consistent with the proviso under the second paragraph of the same
section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office
when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb
upon determination of the FDA.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient"
only those that primarily induce abortion or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the mother's womb.172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed
out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be struck down
for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra
vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger
that the insertion of the qualifier "primarily" will pave the way for the approval of contraceptives which
may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section

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12 of the Constitution. With such qualification in the RH-IRR, it appears to insinuate that a contraceptive
will only be considered as an "abortifacient" if its sole known effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which
are actually abortifacients because of their fail-safe mechanism.174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot
act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of the RH
Law and its declared policy against abortion, the undeniable conclusion is that contraceptives to be
included in the PNDFS and the EDL will not only be those contraceptives that do not have the primary
action of causing abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb, but also those that do not have the
secondary action of acting the same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of Section 3.0l(a)
and G) of the RH-IRR and prohibit only those contraceptives that have the primary effect of being an
abortive would effectively "open the floodgates to the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the
Constitution."175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential medicines and
supplies of all national hospitals.176 Citing various studies on the matter, the petitioners posit that the risk
of developing breast and cervical cancer is greatly increased in women who use oral contraceptives as
compared to women who never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined oral contraceptive pills
is associated with a threefold increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial infarction.177 Given the definition of
"reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners
assert that the assailed legislation only seeks to ensure that women have pleasurable and satisfying sex
lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being
a mere statement of the administration's principle and policy. Even if it were self-executory, the OSG
posits that medical authorities refute the claim that contraceptive pose a danger to the health of
women.181

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The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people,
viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the people
at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled,
women, and children. The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's health
needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-
development, and self-reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous
products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions
clearly express the contrary, the provisions of the Constitution should be considered self-executory. There
is no need for legislation to implement these self-executing provisions.182 In Manila Prince Hotel v.
GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always been, that –

... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing.
. . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to determine when, or whether, they
shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could

275
make them entirely meaningless by simply refusing to pass the needed implementing statute. (Emphases
supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921
and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are dispensed
by a prescription of a duly licensed by a physician - be maintained.185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A.
No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements are still
in to be complied with. Thus, the Court agrees with the observation of respondent Lagman that the
effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since the sale,
distribution and dispensation of contraceptive drugs and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards to ensure the public that
only contraceptives that are safe are made available to the public. As aptly explained by respondent
Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used
without prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other Purposes"
are not repealed by the RH Law and the provisions of said Acts are not inconsistent with the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise
distribute whether for or without consideration, any contraceptive drug or device, unless such sale,
dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the
prescription of a qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for
the purpose of preventing fertilization of the female ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.

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"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with
a fine of not more than five hundred pesos or an imprisonment of not less than six months or more than
one year or both in the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug
of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be
made available to the consuming public except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the
pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives,
whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the Original.
Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to
LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate
with all appropriate local government bodies to plan and implement this procurement and distribution
program. The supply and budget allotments shall be based on, among others, the current levels and
projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions
of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will procure shall be
from a duly licensed drug store or pharmaceutical company and that the actual dispensation of these
contraceptive drugs and devices will done following a prescription of a qualified medical practitioner. The
distribution of contraceptive drugs and devices must not be indiscriminately done. The public health must
be protected by all possible means. As pointed out by Justice De Castro, a heavy responsibility and burden
are assumed by the government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to their use.187

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At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at this point, the attack on the
RH Law on this ground is premature. Indeed, the various kinds of contraceptives must first be measured
up to the constitutional yardstick as expounded herein, to be determined as the case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives
and intra-uterine devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their
inclusion by the National Drug Formulary in the EDL by using the mandatory "shall" is to be construed as
operative only after they have been tested, evaluated, and approved by the FDA. The FDA, not Congress,
has the expertise to determine whether a particular hormonal contraceptive or intrauterine device is safe
and non-abortifacient. The provision of the third sentence concerning the requirements for the inclusion
or removal of a particular family planning supply from the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning products
and supplies by the National Drug Formulary in the EDL is not mandatory. There must first be a
determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family planning
products and supplies. There can be no predetermination by Congress that the gamut of contraceptives
are "safe, legal, non-abortifacient and effective" without the proper scientific examination.

3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and background,
sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of these are medical
practitioners who essentially claim that their beliefs prohibit not only the use of contraceptives but also
the willing participation and cooperation in all things dealing with contraceptive use. Petitioner PAX
explained that "contraception is gravely opposed to marital chastity, it is contrary to the good of the
transmission of life, and to the reciprocal self-giving of the spouses; it harms true love and denies the
sovereign rule of God in the transmission of Human life."188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189

2. On Religious Accommodation and

The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated

278
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.190

They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is
unduly limited, because although it allows a conscientious objector in Section 23 (a)(3) the option to refer
a patient seeking reproductive health services and information - no escape is afforded the conscientious
objector in Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive health procedures. They
claim that the right of other individuals to conscientiously object, such as: a) those working in public health
facilities referred to in Section 7; b) public officers involved in the implementation of the law referred to
in Section 23(b ); and c) teachers in public schools referred to in Section 14 of the RH Law, are also not
recognize.191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer
the matter to another health care service provider is still considered a compulsion on those objecting
healthcare service providers. They add that compelling them to do the act against their will violates the
Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they tend to
disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive effects, mandatory
sex education, mandatory pro-bono reproductive health services to indigents encroach upon the religious
freedom of those upon whom they are required.192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking
reproductive health care services to another provider infringes on one's freedom of religion as it forces
the objector to become an unwilling participant in the commission of a serious sin under Catholic
teachings. While the right to act on one's belief may be regulated by the State, the acts prohibited by the
RH Law are passive acts which produce neither harm nor injury to the public.193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It does
not explain how the rights of the people (to equality, non-discrimination of rights, sustainable human
development, health, education, information, choice and to make decisions according to religious
convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being threatened or
are not being met as to justify the impairment of religious freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family
planning and responsible parenthood seminars and to obtain a certificate of compliance. They claim that
the provision forces individuals to participate in the implementation of the RH Law even if it contravenes
their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or imprisonment in
case of non-compliance with its provisions, the petitioners claim that the RH Law forcing them to provide,
support and facilitate access and information to contraception against their beliefs must be struck down
as it runs afoul to the constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or
type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or

279
belief.196 They point out that the RH Law only seeks to serve the public interest by providing accessible,
effective and quality reproductive health services to ensure maternal and child health, in line with the
State's duty to bring to reality the social justice health guarantees of the Constitution,197 and that what
the law only prohibits are those acts or practices, which deprive others of their right to reproductive
health.198 They assert that the assailed law only seeks to guarantee informed choice, which is an assurance
that no one will be compelled to violate his religion against his free will.199

The respondents add that by asserting that only natural family planning should be allowed, the petitioners
are effectively going against the constitutional right to religious freedom, the same right they invoked to
assail the constitutionality of the RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the Catholic Church's sanctioned
natural family planning methods and impose this on the entire citizenry.201

With respect to the duty to refer, the respondents insist that the same does not violate the constitutional
guarantee of religious freedom, it being a carefully balanced compromise between the interests of the
religious objector, on one hand, who is allowed to keep silent but is required to refer -and that of the
citizen who needs access to information and who has the right to expect that the health care professional
in front of her will act professionally. For the respondents, the concession given by the State under Section
7 and 23(a)(3) is sufficient accommodation to the right to freely exercise one's religion without
unnecessarily infringing on the rights of others.202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited
in duration, location and impact.203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information they
do not agree with and retain the freedom to decide on matters of family life without intervention of the
State.204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only
method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the
matter, they highlight the changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its followers in planning their
families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of
diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government,
in law and in practice, has allowed these various religious, cultural, social and racial groups to thrive in a
single society together. It has embraced minority groups and is tolerant towards all - the religious people
of different sects and the non-believers. The undisputed fact is that our people generally believe in a deity,
whatever they conceived Him to be, and to whom they call for guidance and enlightenment in crafting
our fundamental law. Thus, the preamble of the present Constitution reads:

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We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane
society, and establish a Government that shall embody our ideals and aspirations, promote the common
good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality,
and peace, do ordain and promulgate this Constitution.

The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is embodied
in the preamble, it means that the State recognizes with respect the influence of religion in so far as it
instills into the mind the purest principles of morality.205 Moreover, in recognition of the contributions of
religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and accommodating
provisions towards religions such as tax exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into
the affairs of the church, and vice-versa. The principle of separation of Church and State was, thus,
enshrined in Article II, Section 6 of the 1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect.1âwphi1 Generally, the
State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the country.

Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers to a
temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a religious
organization. Thus, the "Church" means the religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State
from the pursuit of its secular objectives, the Constitution lays down the following mandate in Article III,
Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion,
or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest,

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preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public resources for
the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly
interfering with the outside manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the
modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free
exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good. Any legislation whose
effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the state's secular
goals, the statute is valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563,
81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes. They
have a single goal-to promote freedom of individual religious beliefs and practices. In simplest terms, the
free exercise clause prohibits government from inhibiting religious beliefs with penalties for religious
beliefs and practice, while the establishment clause prohibits government from inhibiting religious belief
with rewards for religious beliefs and practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to influence individual religious beliefs
and practices.210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious
freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The
first part is absolute. As explained in Gerona v. Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So
is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most

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anything, however strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to travel.212

The second part however, is limited and subject to the awesome power of the State and can be enjoyed
only with proper regard to the rights of others. It is "subject to regulation where the belief is translated
into external acts that affect the public welfare."213

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine
of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution."215 In the same case,
it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case
on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger"
test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether
it violates the established institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also
used, albeit inappropriately, the "compelling state interest" test. After Victoriano , German went back to
the Gerona rule. Ebralinag then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and present danger" test in
the maiden case of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form or another, religious speech
as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only case that employed the

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"compelling state interest" test, but as explained previously, the use of the test was inappropriate to the
facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where
the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief.
The "compelling state interest" test is proper where conduct is involved for the whole gamut of human
conduct has different effects on the state's interests: some effects may be immediate and short-term
while others delayed and far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys
a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in
the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order
to build a just and humane society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests
which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to
batter religion, especially the less powerful ones until they are destroyed. In determining which shall
prevail between the state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the same time
affording protection to the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved. [Emphases in the original. Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief. For
the Court has declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical
law, custom and rule of a church ... are unquestionably ecclesiastical matters which are outside the
province of the civil courts."220 The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bench should be understood only in this realm
where it has authority. Stated otherwise, while the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have authority to determine whether the RH Law
contravenes the guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his religion
or defy his religious convictions against his free will. Provisions in the RH Law respecting religious freedom
are the following:

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1. The State recognizes and guarantees the human rights of all persons including their right to equality
and nondiscrimination of these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and the right to choose and
make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and
the demands of responsible parenthood. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which
in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the demands
of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe, legal,
non-abortifacient, and effective in accordance with scientific and evidence-based medical research
standards such as those registered and approved by the FDA for the poor and marginalized as identified
through the NHTS-PR and other government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods of family planning,
especially the Billings Ovulation Method, consistent with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations,

civil society, faith-based organizations, the religious sector and communities is crucial to ensure that
reproductive health and population and development policies, plans, and programs will address the
priority needs of women, the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations
of the family and children. It is likewise a shared responsibility between parents to determine and achieve
the desired number of children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status, sociocultural and economic
concerns consistent with their religious convictions. [Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some
medical practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with
the principle of benevolent neutrality, their beliefs should be respected.

The Establishment Clause

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and Contraceptives

In the same breath that the establishment clause restricts what the government can do with religion, it
also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay his
taxes simply because it will cloud his conscience. The demarcation line between Church and State
demands that one render unto Caesar the things that are Caesar's and unto God the things that are
God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse
religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with
respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health care and services under the law to
another accessible healthcare provider despite their conscientious objections based on religious or ethical
beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent
Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the government succeeds in
demonstrating a more compelling state interest in the accomplishment of an important secular objective.
Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves no less than
strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has
been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious
objector. One side coaxes him into obedience to the law and the abandonment of his religious beliefs,
while the other entices him to a clean conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose religious beliefs are incongruent with what
the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief
and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient
seeking information on modem reproductive health products, services, procedures and methods, his
conscience is immediately burdened as he has been compelled to perform an act against his beliefs. As
Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the basis of the free exercise
clause is the respect for the inviolability of the human conscience.222

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Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise
because it makes pro-life health providers complicit in the performance of an act that they find morally
repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do directly. One may
not be the principal, but he is equally guilty if he abets the offensive act by indirect participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it
being an externalization of one's thought and conscience. This in turn includes the right to be silent. With
the constitutional guarantee of religious freedom follows the protection that should be afforded to
individuals in communicating their beliefs to others as well as the protection for simply being silent. The
Bill of Rights guarantees the liberty of the individual to utter what is in his mind and the liberty not to
utter what is not in his mind.223 While the RH Law seeks to provide freedom of choice through informed
consent, freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's religion.224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the
interest of the State, on the other, to provide access and information on reproductive health products,
services, procedures and methods to enable the people to determine the timing, number and spacing of
the birth of their children, the Court is of the strong view that the religious freedom of health providers,
whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to
his religious belief and conviction, it would be violative of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be
conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be required to
delegate, supervise or support staff on their labor ward who were involved in abortions.226 The Inner
House stated "that if 'participation' were defined according to whether the person was taking part
'directly' or ' indirectly' this would actually mean more complexity and uncertainty."227

While the said case did not cover the act of referral, the applicable principle was the same - they could
not be forced to assist abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated
by a religious group and health care service providers. Considering that Section 24 of the RH Law penalizes
such institutions should they fail or refuse to comply with their duty to refer under Section 7 and Section
23(a)(3), the Court deems that it must be struck down for being violative of the freedom of religion. The
same applies to Section 23(a)(l) and (a)(2) in relation to Section 24, considering that in the dissemination
of information regarding programs and services and in the performance of reproductive health
procedures, the religious freedom of health care service providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it was
stressed:

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Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of others and with the common
good."10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance.
Without set consequences for either an active violation or mere inaction, a law tends to be toothless and
ineffectual. Nonetheless, when what is bartered for an effective implementation of a law is a
constitutionally-protected right the Court firmly chooses to stamp its disapproval. The punishment of a
healthcare service provider, who fails and/or refuses to refer a patient to another, or who declines to
perform reproductive health procedure on a patient because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered
as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The conscientious objection clause
should be equally protective of the religious belief of public health officers. There is no perceptible
distinction why they should not be considered exempt from the mandates of the law. The protection
accorded to other conscientious objectors should equally apply to all medical practitioners without
distinction whether they belong to the public or private sector. After all, the freedom to believe is intrinsic
in every individual and the protective robe that guarantees its free exercise is not taken off even if one
acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human
values. The mind must be free to think what it wills, whether in the secular or religious sphere, to give
expression to its beliefs by oral discourse or through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation. Embraced in such concept then are freedom
of religion, freedom of speech, of the press, assembly and petition, and freedom of association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law itself but
also because it is violative of the equal protection clause in the Constitution. Quoting respondent Lagman,
if there is any conflict between the RH-IRR and the RH Law, the law must prevail.

Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH
Law is replete with provisions in upholding the freedom of religion and respecting religious convictions.
Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?

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Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the
nuances of the provisions.

Justice Mendoza:

I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: "
.... skilled health professionals such as provincial, city or municipal health officers, chief of hospitals, head
nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the
duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious
objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree with
this? Is this not against the constitutional right to the religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2] discharge the burden of proof that the obligatory
character of the law is the least intrusive means to achieve the objectives of the law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the curbing
of a conscientious objector's right not to adhere to an action contrary to his religious convictions. During
the oral arguments, the OSG maintained the same silence and evasion. The Transcripts of the
Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

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Justice De Castro:

... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing
this duty to refer to a conscientious objector which refuses to do so because of his religious belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an
ordinary health legislation involving professionals. This is not a free speech matter or a pure free exercise
matter. This is a regulation by the State of the relationship between medical doctors and their patients.231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the prevention of an immediate and grave danger
to the security and welfare of the community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable.232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not
to act according to what one believes. And this freedom is violated when one is compelled to act against
one's belief or is prevented from acting according to one's belief.233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and spacing
of the birth of their children refers to a future event that is contingent on whether or not the mother
decides to adopt or use the information, product, method or supply given to her or whether she even
decides to become pregnant at all. On the other hand, the burden placed upon those who object to
contraceptive use is immediate and occurs the moment a patient seeks consultation on reproductive
health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to religious
freedom. Also, the respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive means.234 Other than the
assertion that the act of referring would only be momentary, considering that the act of referral by a
conscientious objector is the very action being contested as violative of religious freedom, it behooves
the respondents to demonstrate that no other means can be undertaken by the State to achieve its
objective without violating the rights of the conscientious objector. The health concerns of women may
still be addressed by other practitioners who may perform reproductive health-related procedures with

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open willingness and motivation. Suffice it to say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last vanguard of constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health
is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act,
R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The
Magna Carta of Women," amply cater to the needs of women in relation to health services and programs.
The pertinent provision of Magna Carta on comprehensive health services and programs for women, in
fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times,
provide for a comprehensive, culture-sensitive, and gender-responsive health services and programs
covering all stages of a woman's life cycle and which addresses the major causes of women's mortality
and morbidity: Provided, That in the provision for comprehensive health services, due respect shall be
accorded to women's religious convictions, the rights of the spouses to found a family in accordance with
their religious convictions, and the demands of responsible parenthood, and the right of women to
protection from hazardous drugs, devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and infant
health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;

(5) Prevention and management of reproductive tract infections, including sexually

transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims and
survivors shall be provided with comprehensive health services that include psychosocial,
therapeutic, medical, and legal interventions and assistance towards healing, recovery,
and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical
norms and medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

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 (11) Management, treatment, and intervention of mental health problems of women and
girls. In addition, healthy lifestyle activities are encouraged and promoted through
programs and projects as strategies in the prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information and education on all the above-stated aspects
of women's health in government education and training programs, with due regard to the following:

(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was
"Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x
x."235 He, however, failed to substantiate this point by concrete facts and figures from reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal
mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that
time. Despite such revelation, the proponents still insist that such number of maternal deaths constitute
a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino
women, they could not be solved by a measure that puts an unwarrantable stranglehold on religious
beliefs in exchange for blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care procedures if
doing it would contravene their religious beliefs, an exception must be made in life-threatening cases that
require the performance of emergency procedures. In these situations, the right to life of the mother
should be given preference, considering that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in grave danger. Thus, during the oral
arguments, Atty. Liban, representing CFC, manifested: "the forced referral clause that we are objecting
on grounds of violation of freedom of religion does not contemplate an emergency."237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged
always to try to save both lives. If, however, it is impossible, the resulting death to one should not be
deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the mother
of the child is never justified to bring about a "good" effect. In a conflict situation between the life of the

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child and the life of the mother, the doctor is morally obliged always to try to save both lives. However,
he can act in favor of one (not necessarily the mother) when it is medically impossible to save both,
provided that no direct harm is intended to the other. If the above principles are observed, the loss of the
child's life or the mother's life is not intentional and, therefore, unavoidable. Hence, the doctor would not
be guilty of abortion or murder. The mother is never pitted against the child because both their lives are
equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may
be resorted to even if is against the religious sentiments of the medical practitioner. As quoted above,
whatever burden imposed upon a medical practitioner in this case would have been more than justified
considering the life he would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage license,
the Court finds the same to be a reasonable exercise of police power by the government. A cursory reading
of the assailed provision bares that the religious freedom of the petitioners is not at all violated. All the
law requires is for would-be spouses to attend a seminar on parenthood, family planning breastfeeding
and infant nutrition. It does not even mandate the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly noted by the OSG, those who receive any
information during their attendance in the required seminars are not compelled to accept the information
given to them, are completely free to reject the information they find unacceptable, and retain the
freedom to decide on matters of family life without the intervention of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the
Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity and
fosters animosity in the family rather than promote its solidarity and total development.240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution.
In fact, one article, Article XV, is devoted entirely to the family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 3. The State shall defend:

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The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;

The right of the family to a family living wage and income; and

The right of families or family assoc1at1ons to participate in the planning and implementation of policies
and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise deprives
the parents of their authority over their minor daughter simply because she is already a parent or had
suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age
on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the
one undergoing the procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and vasectomy which,
by their very nature, should require mutual consent and decision between the husband and the wife as
they affect issues intimately related to the founding of a family. Section 3, Art. XV of the Constitution
espouses that the State shall defend the "right of the spouses to found a family." One person cannot found
a family. The right, therefore, is shared by both spouses. In the same Section 3, their right "to participate
in the planning and implementation of policies and programs that affect them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority
to the spouse who would undergo a procedure, and barring the other spouse from participating in the
decision would drive a wedge between the husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing the population. This would be a marked
departure from the policy of the State to protect marriage as an inviolable social institution.241

Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family because
the size of the family or the number of their children significantly matters. The decision whether or not to

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undergo the procedure belongs exclusively to, and shared by, both spouses as one cohesive unit as they
chart their own destiny. It is a constitutionally guaranteed private right. Unless it prejudices the State,
which has not shown any compelling interest, the State should see to it that they chart their destiny
together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the
"Magna Carta for Women," provides that women shall have equal rights in all matters relating to marriage
and family relations, including the joint decision on the number and spacing of their children. Indeed,
responsible parenthood, as Section 3(v) of the RH Law states, is a shared responsibility between parents.
Section 23(a)(2)(i) of the RH Law should not be allowed to betray the constitutional mandate to protect
and strengthen the family by giving to only one spouse the absolute authority to decide whether to
undergo reproductive health procedure.242

The right to chart their own destiny together falls within the protected zone of marital privacy and such
state intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In
our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully deserving of constitutional
protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v. Connecticut,245 where
Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our
school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to
the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living,
not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble
a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal
offense on the ground of its amounting to an unconstitutional invasion of the right to privacy of married
persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations
from those guarantees that help give them life and substance. Various guarantees create zones of
privacy."246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing
a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. – x x x.

No person shall be denied information and access to family planning services, whether natural or artificial:
Provided, That minors will not be allowed access to modern methods of family planning without written
consent from their parents or guardian/s except when the minor is already a parent or has had a
miscarriage.

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There can be no other interpretation of this provision except that when a minor is already a parent or has
had a miscarriage, the parents are excluded from the decision making process of the minor with regard
to family planning. Even if she is not yet emancipated, the parental authority is already cut off just because
there is a need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her
own parents. The State cannot replace her natural mother and father when it comes to providing her
needs and comfort. To say that their consent is no longer relevant is clearly anti-family. It does not
promote unity in the family. It is an affront to the constitutional mandate to protect and strengthen the
family as an inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government."247 In this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-
child or the right of the spouses to mutually decide on matters which very well affect the very purpose of
marriage, that is, the establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and strongly-held Filipino tradition
of maintaining close family ties and violative of the recognition that the State affords couples entering
into the special contract of marriage to as one unit in forming the foundation of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care and custody
of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling
state interest can justify a state substitution of their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the second paragraph of
Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made.
There must be a differentiation between access to information about family planning services, on one
hand, and access to the reproductive health procedures and modern family planning methods themselves,
on the other. Insofar as access to information is concerned, the Court finds no constitutional objection to
the acquisition of information by the minor referred to under the exception in the second paragraph of
Section 7 that would enable her to take proper care of her own body and that of her unborn child. After
all, Section 12, Article II of the Constitution mandates the State to protect both the life of the mother as
that of the unborn child. Considering that information to enable a person to make informed decisions is
essential in the protection and maintenance of ones' health, access to such information with respect to
reproductive health must be allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise parental guidance and control
over their minor child and assist her in deciding whether to accept or reject the information received.

Second Exception: Life Threatening Cases

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As in the case of the conscientious objector, an exception must be made in life-threatening cases that
require the performance of emergency procedures. In such cases, the life of the minor who has already
suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack of consent. It
should be emphasized that no person should be denied the appropriate medical care urgently needed to
preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By effectively
limiting the requirement of parental consent to "only in elective surgical procedures," it denies the parents
their right of parental authority in cases where what is involved are "non-surgical procedures." Save for
the two exceptions discussed above, and in the case of an abused child as provided in the first sentence
of Section 23(a)(2)(ii), the parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional mandate to protect and
strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of
Age-and Development-Appropriate Reproductive Health Education under threat of fine and/or
imprisonment violates the principle of academic freedom . According to the petitioners, these provisions
effectively force educational institutions to teach reproductive health education even if they believe that
the same is not suitable to be taught to their students.250 Citing various studies conducted in the United
States and statistical data gathered in the country, the petitioners aver that the prevalence of
contraceptives has led to an increase of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of society; and promotion
of promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature
because the Department of Education, Culture and Sports has yet to formulate a curriculum on age-
appropriate reproductive health education. One can only speculate on the content, manner and medium
of instruction that will be used to educate the adolescents and whether they will contradict the religious
beliefs of the petitioners and validate their apprehensions. Thus, considering the premature nature of this
particular issue, the Court declines to rule on its constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and development of moral character shall
receive the support of the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987
Constitution affirms the State recognition of the invaluable role of parents in preparing the youth to
become productive members of society. Notably, it places more importance on the role of parents in the
development of their children by recognizing that said role shall be "primary," that is, that the right of
parents in upbringing the youth is superior to that of the State.252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral development
of the youth. Indeed, the Constitution makes mention of the importance of developing the youth and
their important role in nation building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the development of knowledge
and skills in self-protection against discrimination; sexual abuse and violence against women and children
and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women's rights and children's rights; responsible teenage behavior; gender and

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development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t)
of the RH Law itself provides for the teaching of responsible teenage behavior, gender sensitivity and
physical and emotional changes among adolescents - the Court finds that the legal mandate provided
under the assailed provision supplements, rather than supplants, the rights and duties of the parents in
the moral development of their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education program
shall be developed in conjunction with parent-teacher-community associations, school officials and other
interest groups, it could very well be said that it will be in line with the religious beliefs of the petitioners.
By imposing such a condition, it becomes apparent that the petitioners' contention that Section 14
violates Article XV, Section 3(1) of the Constitution is without merit.254

While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground that
the same violates their religious beliefs, the Court reserves its judgment should an actual case be filed
before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause
of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider"
among those who may be held punishable but does not define who is a "private health care service
provider." They argue that confusion further results since Section 7 only makes reference to a "private
health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It is
unclear, however, if these institutions are also exempt from giving reproductive health information under
Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to
the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words used in a statute are vague, words must not only
be taken in accordance with their plain meaning alone, but also in relation to other parts of the statute. It
is a rule that every part of the statute must be interpreted with reference to the context, that is, every
part of it must be construed together with the other parts and kept subservient to the general intent of
the whole enactment.256

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As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service provider,"
viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed
and accredited and devoted primarily to the maintenance and operation of facilities for health promotion,
disease prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury,
disability or deformity, or in need of obstetrical or other medical and nursing care; (2) public health care
professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has undergone training programs
under any accredited government and NGO and who voluntarily renders primarily health care services in
the community after having been accredited to function as such by the local health board in accordance
with the guidelines promulgated by the Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of confusion for the obvious reason that they are
used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being obligated to render
reproductive health service and modem family planning methods, includes exemption from being
obligated to give reproductive health information and to render reproductive health procedures. Clearly,
subject to the qualifications and exemptions earlier discussed, the right to be exempt from being obligated
to render reproductive health service and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and to render reproductive
health procedures. The terms "service" and "methods" are broad enough to include the providing of
information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as follows:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family
planning methods;

From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with
established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety;
and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means with awareness
or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l), they connote a sense
of malice and ill motive to mislead or misrepresent the public as to the nature and effect of programs and
services on reproductive health. Public health and safety demand that health care service providers give
their honest and correct medical information in accordance with what is acceptable in medical practice.

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While health care service providers are not barred from expressing their own personal opinions regarding
the programs and services on reproductive health, their right must be tempered with the need to provide
public health and safety. The public deserves no less.

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as
it discriminates against the poor because it makes them the primary target of the government program
that promotes contraceptive use . They argue that, rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that would effectively reduce the number of the poor. Their
bases are the various provisions in the RH Law dealing with the poor, especially those mentioned in the
guiding principles259 and definition of terms260 of the law.

They add that the exclusion of private educational institutions from the mandatory reproductive health
education program imposed by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of
equal protection. Thus:

One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced
in the concept of due process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against
any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged
on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.

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

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing

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conditions only; and (4) It applies equally to all members of the same class. "Superficial differences do not
make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or embrace all persons
who naturally belong to the class. "The classification will be regarded as invalid if all the members of the
class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that
the classification be made with absolute symmetry, in the sense that the members of the class should
possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is
achieved, all those covered by the classification are to be treated equally. The mere fact that an individual
belonging to a class differs from the other members, as long as that class is substantially distinguishable
from all others, does not justify the non-application of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations excluded]

To provide that the poor are to be given priority in the government's reproductive health care program is
not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the
Constitution which recognizes the distinct necessity to address the needs of the underprivileged by
providing that they be given priority in addressing the health development of the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the people
at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled,
women, and children. The State shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering
from fertility issues and desire to have children. There is, therefore, no merit to the contention that the
RH Law only seeks to target the poor to reduce their number. While the RH Law admits the use of
contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1) explains, the
"promotion and/or stabilization of the population growth rate is incidental to the advancement of
reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose
conditions upon couples who intend to have children. While the petitioners surmise that the assailed law
seeks to charge couples with the duty to have children only if they would raise them in a truly humane
way, a deeper look into its provisions shows that what the law seeks to do is to simply provide priority to
the poor in the implementation of government programs to promote basic reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive health
education program under Section 14, suffice it to state that the mere fact that the children of those who
are less fortunate attend public educational institutions does not amount to substantial distinction
sufficient to annul the assailed provision. On the other hand, substantial distinction rests between public
educational institutions and private educational institutions, particularly because there is a need to
recognize the academic freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive health education.

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8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation requiring
private and non-government health care service providers to render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to involuntary servitude because it requires medical
practitioners to perform acts against their will.262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have the
discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the accreditation of medical practitioners with
PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest that
it is both a power and a duty of the State to control and regulate it in order to protect and promote the
public welfare. Like the legal profession, the practice of medicine is not a right but a privileged burdened
with conditions as it directly involves the very lives of the people. A fortiori, this power includes the power
of Congress263 to prescribe the qualifications for the practice of professions or trades which affect the
public welfare, the public health, the public morals, and the public safety; and to regulate or control such
professions or trades, even to the point of revoking such right altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force,
threats, intimidation or other similar means of coercion and compulsion.265 A reading of the assailed
provision, however, reveals that it only encourages private and non- government reproductive healthcare
service providers to render pro bono service. Other than non-accreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise. Private and non-government reproductive healthcare
service providers also enjoy the liberty to choose which kind of health service they wish to provide, when,
where and how to provide it or whether to provide it all. Clearly, therefore, no compulsion, force or threat
is made upon them to render pro bono service against their will. While the rendering of such service was
made a prerequisite to accreditation with PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive imposed by Congress in the furtherance of a
perceived legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and convictions
do not allow them to render reproductive health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the
competency to evaluate, register and cover health services and methods. It is the only government entity

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empowered to render such services and highly proficient to do so. It should be understood that health
services and methods fall under the gamut of terms that are associated with what is ordinarily understood
as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and
Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the
Office of the Secretary and shall have the following functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations issued
pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products standards,
and to recommend standards of identity, purity, safety, efficacy, quality and fill of container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations regarding
operation of manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and
other establishments and facilities of health products, as determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,

retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health products,
whether or not registered with the FDA Provided, That for registered health products, the cease
and desist order is valid for thirty (30) days and may be extended for sixty ( 60) days only after
due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to
have caused death, serious illness or serious injury to a consumer or patient, or is found to be
imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to
implement the risk management plan which is a requirement for the issuance of the appropriate
authorization;

x x x.

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As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the
agency to carry out the mandates of the law. Being the country's premiere and sole agency that ensures
the safety of food and medicines available to the public, the FDA was equipped with the necessary powers
and functions to make it effective. Pursuant to the principle of necessary implication, the mandate by
Congress to the FDA to ensure public health and safety by permitting only food and medicines that are
safe includes "service" and "methods." From the declared policy of the RH Law, it is clear that Congress
intended that the public be given only those medicines that are proven medically safe, legal, non-
abortifacient, and effective in accordance with scientific and evidence-based medical research standards.
The philosophy behind the permitted delegation was explained in Echagaray v. Secretary of Justice,267 as
follows:

The reason is the increasing complexity of the task of the government and the growing inability of the
legislature to cope directly with the many problems demanding its attention. The growth of society has
ramified its activities and created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of
the problems attendant upon present day undertakings, the legislature may not have the competence,
let alone the interest and the time, to provide the required direct and efficacious, not to say specific
solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code. Said
Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic services and
facilities, as follows:

SECTION 17. Basic Services and Facilities. –

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to them
pursuant to this Code. Local government units shall likewise exercise such other powers and
discharge such other functions and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on the
aspect of providing for basic services and facilities in their respective jurisdictions, paragraph (c)
of the same provision provides a categorical exception of cases involving nationally-funded
projects, facilities, programs and services.268Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government under

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 the annual General Appropriations Act, other special laws, pertinent executive orders, and those
wholly or partially funded from foreign sources, are not covered under this Section, except in
those cases where the local government unit concerned is duly designated as the implementing
agency for such projects, facilities, programs and services. [Emphases supplied]

The essence of this express reservation of power by the national government is that, unless an LGU is
particularly designated as the implementing agency, it has no power over a program for which funding
has been provided by the national government under the annual general appropriations act, even if the
program involves the delivery of basic services within the jurisdiction of the LGU.269 A complete
relinquishment of central government powers on the matter of providing basic facilities and services
cannot be implied as the Local Government Code itself weighs against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health
care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation. Local
autonomy is not absolute. The national government still has the say when it comes to national priority
programs which the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the availability of
these services mandatory for the LGUs. For said reason, it cannot be said that the RH Law amounts to an
undue encroachment by the national government upon the autonomy enjoyed by the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied
to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and
11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption
of the operation of the RH Law in the autonomous region, refer to the policy statements for the guidance
of the regional government. These provisions relied upon by the petitioners simply delineate the powers
that may be exercised by the regional government, which can, in no manner, be characterized as an
abdication by the State of its power to enact legislation that would benefit the general welfare. After all,
despite the veritable autonomy granted the ARMM, the Constitution and the supporting jurisprudence,
as they now stand, reject the notion of imperium et imperio in the relationship between the national and
the regional governments.274 Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary power to legislate on all
subjects which extends to all matters of general concern or common interest.275

11 - Natural Law

With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does
not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the
Constitution. While every law enacted by man emanated from what is perceived as natural law, the Court
is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To begin with, it is
not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on
inherent rights espoused by theorists, philosophers and theologists. The jurists of the philosophical school
are interested in the law as an abstraction, rather than in the actual law of the past or present.277 Unless,

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a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law. In
Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was explained that the Court is not
duty-bound to examine every law or action and whether it conforms with both the Constitution and
natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances involving
rights inherent to man where no law is applicable.279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow
abortion in any shape or form. It only seeks to enhance the population control program of the government
by providing information and making non-abortifacient contraceptives more readily available to the
public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare
services, methods, devices, and supplies. As earlier pointed out, however, the religious freedom of some
sectors of society cannot be trampled upon in pursuit of what the law hopes to achieve. After all, the
Constitutional safeguard to religious freedom is a recognition that man stands accountable to an authority
higher than the State.

In conformity with the principle of separation of Church and State, one religious group cannot be allowed
to impose its beliefs on the rest of the society. Philippine modem society leaves enough room for diversity
and pluralism. As such, everyone should be tolerant and open-minded so that peace and harmony may
continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks
to address is the problem of rising poverty and unemployment in the country. Let it be said that the cause
of these perennial issues is not the large population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the country's wealth remains in the hands
of the very few.

At any rate, population control may not be beneficial for the country in the long run. The European and
Asian countries, which embarked on such a program generations ago , are now burdened with ageing
populations. The number of their young workers is dwindling with adverse effects on their economy.
These young workers represent a significant human capital which could have helped them invigorate,
innovate and fuel their economy. These countries are now trying to reverse their programs, but they are
still struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers.
This is because we have an ample supply of young able-bodied workers. What would happen if the country
would be weighed down by an ageing population and the fewer younger generation would not be able to
support them? This would be the situation when our total fertility rate would go down below the
replacement level of two (2) children per woman.280

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Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law
is as enacted by the lawmaking body. That is not the same as saying what the law should be or what is the
correct rule in a given set of circumstances. It is not the province of the judiciary to look into the wisdom
of the law nor to question the policies adopted by the legislative branch. Nor is it the business of this
Tribunal to remedy every unjust situation that may arise from the application of a particular law. It is for
the legislature to enact remedial legislation if that would be necessary in the premises. But as always, with
apt judicial caution and cold neutrality, the Court must carry out the delicate function of interpreting the
law, guided by the Constitution and existing legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine itself to the judicial task of saying what the
law is, as enacted by the lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior
existing contraceptive and reproductive health laws, but with coercive measures. Even if the Court
decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna Carta of Women
(R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the same, the principle of "no-
abortion" and "non-coercion" in the adoption of any family planning method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as
NOT UNCONSTITUTIONAL except with respect to the following provisions which are declared
UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private
health facilities and non-maternity specialty hospitals and hospitals owned and operated by a
religious group to refer patients, not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modem methods of family
planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless of
his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344,
to undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to refer a

307
 patient not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health care service provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any public officer who refuses to support reproductive health programs or
shall do any act that hinders the full implementation of a reproductive health program, regardless
of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing
PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for
contravening Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July
16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared
as constitutional.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod City,
and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN, JOSEPH
EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent
of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the admonition for
husbands to love their wives as their own bodies just as Christ loved the church and gave himself up for
her2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino women. The National
Commission on the Role of Filipino Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90o/o of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands and live-in
partners."3

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Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted
Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It
took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their
children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or any person
who has or had a sexual or dating relationship, or with whom the woman has a common child.5 The law
provides for protection orders from the barangay and the courts to prevent the commission of further
acts of VAWC; and outlines the duties and responsibilities of barangay officials, law enforcers, prosecutors
and court personnel, social workers, health care providers, and other local government officials in
responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the
equal protection and due process clauses, and an undue delegation of judicial power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor
children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City
for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C. Garcia (petitioner),
pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional, psychological, and
economic violence as a result of marital infidelity on the part of petitioner, with threats of deprivation of
custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years
her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of
petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard
J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and
demands absolute obedience from his wife and children. He forbade private respondent to pray, and
deliberately isolated her from her friends. When she took up law, and even when she was already working
part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at home.
He was often jealous of the fact that his attractive wife still catches the eye of some men, at one point
threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He even boasted to the household help about his sexual
relations with said bank manager. Petitioner told private respondent, though, that he was just using the
woman because of their accounts with the bank.10

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Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner grabbed private respondent on both arms and shook her
with such force that caused bruises and hematoma. At another time, petitioner hit private respondent
forcefully on the lips that caused some bleeding. Petitioner sometimes turned his ire on their daughter,
Jo-Ann, who had seen the text messages he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times. When private respondent decided to leave
petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat her
up. Even the small boys are aware of private respondent's sufferings. Their 6-year-old son said that when
he grows up, he would beat up his father because of his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by her son
bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which time petitioner never bothered to visit, nor
apologized or showed pity on her. Since then, private respondent has been undergoing therapy almost
every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file charges
against the bank manager, petitioner got angry with her for jeopardizing the manager's job. He then
packed his things and told private respondent that he was leaving her for good. He even told private
respondent's mother, who lives with them in the family home, that private respondent should just accept
his extramarital affair since he is not cohabiting with his paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation – of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly salary
of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than P200,000.00 a month are paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill Corporation,
and enjoys unlimited cash advances and other benefits in hundreds of thousands of pesos from the
corporations.16After private respondent confronted him about the affair, petitioner forbade her to hold
office at JBTC Building, Mandalagan, where all the businesses of the corporations are conducted, thereby
depriving her of access to full information about said businesses. Until the filing of the petition a quo,
petitioner has not given private respondent an accounting of the businesses the value of which she had
helped raise to millions of pesos.17

Action of the RTC of Bacolod City

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Finding reasonable ground to believe that an imminent danger of violence against the private respondent
and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty
(30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within
24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering that he be
removed by police officers from the conjugal dwelling; this order is enforceable notwithstanding
that the house is under the name of 236 Realty Holdings Inc. (Republic Act No. 9262 states
"regardless of ownership"), this is to allow the Petitioner (private respondent herein) to enter the
conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner
decides to return to the conjugal dwelling to remove things, the Petitioner shall be assisted by
police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006
because of the danger that the Respondent will attempt to take her children from her when he
arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and driver
from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the
Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation rights to
the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering
the Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP
to cancel all the Respondent's firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for
them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all
the corporations from 1 January 2006 up to 31 March 2006, which himself and as President of the
corporations and his Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court by the Comptroller,
copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect Contempt of
Court.

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 h) To ensure compliance especially with the order granting support pendente lite, and considering
the financial resources of the Respondent and his threat that if the Petitioner sues she will not get
a single centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount
of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol
and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the TPO
be modified by (1) removing one vehicle used by private respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond
from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him visitation
rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie
and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in Indirect Contempt of
Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house
in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary
Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary
Protection Order by his counsel, and that he cannot return until 48 hours after the petitioners
have left, so that the petitioner Rosalie and her representatives can remove things from the

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 conjugal home and make an inventory of the household furniture, equipment and other things in
the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00
for clothes of the three petitioners (sic) children within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court
within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation of
proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent filed
another application24for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was
purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex Van used
by private respondent and the children. A writ of replevin was served upon private respondent by a group
of six or seven policemen with long firearms that scared the two small boys, Jessie Anthone and Joseph
Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap
him, which incident traumatized the boy resulting in his refusal to go back to school. On another occasion,
petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened her.26 The incident was
reported to the police, and Jo-Ann subsequently filed a criminal complaint against her father for violation
of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This came
about after private respondent, armed with a TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the maids' room,
private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of

violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in

any form with the offended party, either directly or indirectly;

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 3) Required to stay away, personally or through his friends, relatives, employees or agents, from
all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother
Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the petitioner's other household helpers from a
distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioners are
temporarily residing, as well as from the schools of the three children; Furthermore, that
respondent shall not contact the schools of the children directly or indirectly in any manner
including, ostensibly to pay for their tuition or other fees directly, otherwise he will have access
to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the
Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for
rental for the period from August 6 to September 6, 2006; and support in arrears from March
2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van
with Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is
ordered to provide the petitioner another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal
assets, or those real properties in the name of Jesus Chua Garcia only and those in which the
conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod
City, and other properties which are conjugal assets or those in which the conjugal partnership of
gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in Annexes
"I," "I-1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of
this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale,
encumbrance or disposition of these above-cited properties to any person, entity or corporation
without the personal presence of petitioner Rosalie J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear of petitioner Rosalie that her signature will be
forged in order to effect the encumbrance or sale of these properties to defraud her or the
conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten
(10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO should
not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he has not
received a copy of private respondent's motion to modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an
Order32 dated a day earlier, October 5, had already been issued renewing the TPO dated August 23, 2006.
The pertinent portion is quoted hereunder:

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xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until further orders, and subject to such
modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required comment
to private respondent's motion for renewal of the TPO arguing that it would only be an "exercise in
futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due process
and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil case for being
"an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure of
petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case, which is
clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial
court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution37 dated
August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

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THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER
TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE
STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262,
we shall first tackle the propriety of the dismissal by the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not
raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court, it will
not be considered on appeal.39 Courts will not anticipate a question of constitutional law in advance of
the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to tackle
the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial
Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family courts have exclusive
original jurisdiction to hear and decide cases of domestic violence against women and children.42 In
accordance with said law, the Supreme Court designated from among the branches of the Regional Trial
Courts at least one Family Court in each of several key cities identified.43 To achieve harmony with the
first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family
Courts shall have original and exclusive jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their children under this law. In the absence of such
court in the place where the offense was committed, the case shall be filed in the Regional Trial Court
where the crime or any of its elements was committed at the option of the complainant. (Emphasis
supplied)

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Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a
court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is settled that
RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being embraced in the
general definition of the judicial power to determine what are the valid and binding laws by the criterion
of their conformity to the fundamental law."46 The Constitution vests the power of judicial review or the
power to declare the constitutionality or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47 We
said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution contemplates that the inferior courts
should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate
review of final judgments of inferior courts in cases where such constitutionality happens to be in issue."
Section 5, Article VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been
raised at the earliest opportunity in his Opposition to the petition for protection order before the RTC of
Bacolod City, which had jurisdiction to determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down
a new kind of procedure requiring the respondent to file an opposition to the petition and not an
answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint,
but any cause of action which could be the subject thereof may be litigated in a separate civil action.
(Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and
third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any claim by
one party against a co-party arising out of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein.51Finally, a third-party complaint is a claim that a

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defending party may, with leave of court, file against a person not a party to the action for contribution,
indemnity, subrogation or any other relief, in respect of his opponent's claim.52 As pointed out by Justice
Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action that could be
the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from
being raised in the opposition in view of the familiar maxim expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of
private respondent to a protection order is founded solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of its enforcement. The
alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the non-issuance
of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner
from raising the same in his Opposition. The question relative to the constitutionality of a statute is one
of law which does not need to be supported by evidence.54 Be that as it may, Section 25 of A.M. No. 04-
10-11-SC nonetheless allows the conduct of a hearing to determine legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue
an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to
the extent possible, within the 30-day period of the effectivity of the temporary protection order
issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary,
Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to
expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until
final judgment is rendered. It may likewise modify the extended or renewed temporary protection order
as may be necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without necessarily running afoul
of the very purpose for the adoption of the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer
for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have
proceeded upon an honest belief that if he finds succor in a superior court, he could be granted an
injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a petition
for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court. Hence,
the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO, the

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amended TPOs and other orders pursuant thereto was improper, and it effectively hindered the case from
taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover,
if the appeal of a judgment granting permanent protection shall not stay its enforcement,55 with more
reason that a TPO, which is valid only for thirty (30) days at a time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant
to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared,
thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate
and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized
and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to
prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of
the case. It bears stressing, however, that protection orders are granted ex parte so as to protect women
and their children from acts of violence. To issue an injunction against such orders will defeat the very
purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again, discharged
our solemn duty as final arbiter of constitutional issues, and with more reason now, in view of private
respondent's plea in her Comment59 to the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse,
which could very well be committed by either the husband or the wife, gender alone is not enough basis
to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals that
while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had originally
proposed what she called a "synthesized measure"62 – an amalgamation of two measures, namely, the
"Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships Act"63 – providing
protection to "all family members, leaving no one in isolation" but at the same time giving special
attention to women as the "usual victims" of violence and abuse,64 nonetheless, it was eventually agreed
that men be denied protection under the same measure. We quote pertinent portions of the
deliberations:

Wednesday, December 10, 2003

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Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence apart
from against women as well as other members of the household, including children or the husband, they
fear that this would weaken the efforts to address domestic violence of which the main victims or the bulk
of the victims really are the wives, the spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in
Intimate Relationship. They do not want to include men in this domestic violence. But plenty of men are
also being abused by women. I am playing safe so I placed here members of the family, prescribing
penalties therefor and providing protective measures for victims. This includes the men, children, live-in,
common-law wives, and those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women and
not to families which was the issue of the AWIR group. The understanding that I have is that we would be
having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file
a case against their spouses, their live-in partners after years, if not decade, of battery and abuse. If we
broaden the scope to include even the men, assuming they can at all be abused by the women or their
spouses, then it would not equalize the already difficult situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the
men in this Chamber who love their women in their lives so dearly will agree with this representation.
Whether we like it or not, it is an unequal world. Whether we like it or not, no matter how empowered
the women are, we are not given equal opportunities especially in the domestic environment where the
macho Filipino man would always feel that he is stronger, more superior to the Filipino woman.

xxxx

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The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the
family members have been included in this proposed measure since the other members of the family
other than women are also possible victims of violence. While women are most likely the intended victims,
one reason incidentally why the measure focuses on women, the fact remains that in some relatively few
cases, men also stand to be victimized and that children are almost always the helpless victims of violence.
I am worried that there may not be enough protection extended to other family members particularly
children who are excluded. Although Republic Act No. 7610, for instance, more or less, addresses the
special needs of abused children. The same law is inadequate. Protection orders for one are not available
in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that
they may use this law to justify their abusive behavior against women. However, we should also recognize
that there are established procedures and standards in our courts which give credence to evidentiary
support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in our
society, I believe we have an obligation to uphold inherent rights and dignity of both husband and wife
and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical
input arrived at after a series of consultations/meetings with various NGOs, experts, sports groups and
other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That will be
the net effect of that proposed amendment. Hearing the rationale mentioned by the distinguished
sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will propose
an amendment to the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

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The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent
of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong babae
kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot
agree that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is not
limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old
children being abused by their fathers, even by their mothers. And it breaks my heart to find out about
these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not
the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of Congress

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in limiting the protection against violence and abuse under R.A. 9262 to women and children only. No
proper challenge on said grounds may be entertained in this proceeding. Congress has made its choice
and it is not our prerogative to supplant this judgment. The choice may be perceived as erroneous but
even then, the remedy against it is to seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency
of any law.68 We only step in when there is a violation of the Constitution. However, none was sufficiently
shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early case of
Victoriano v. Elizalde Rope Workers' Union69 is instructive:

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

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in
the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences; that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection clause by
favoring women over men as victims of violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than men
to be victims of violence; and the widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice McIntyre succinctly states, "the
accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

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According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the unequal
power relationship between women and men otherwise known as "gender-based violence". Societal
norms and traditions dictate people to think men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining more power over women. With power
comes the need to control to retain that power. And VAW is a form of men's expression of controlling
women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104
on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating that
"violence against women is a manifestation of historically unequal power relations between men and
women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial social
mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and
developments in advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of R.A.
9262 and its Implementing Rules last October 27, 2004, the pertinent portions of which are quoted
hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a family
was accorded the right to use force on members of the family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of men.
Women were seen in virtually all societies to be naturally inferior both physically and intellectually. In
ancient Western societies, women whether slave, concubine or wife, were under the authority of men. In
law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered
his property right over her. Judaism, Christianity and other religions oriented towards the patriarchal
family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has
been quoted in his commentaries as saying husband and wife were one and that one was the husband.
However, in the late 1500s and through the entire 1600s, English common law began to limit the right of
husbands to chastise their wives. Thus, common law developed the rule of thumb, which allowed
husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal
punishment ceased. Even then, the preservation of the family was given more importance than preventing
violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common law.
In 1871, the Supreme Court of Alabama became the first appellate court to strike down the common law
right of a husband to beat his wife:

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The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in
her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our
law... In person, the wife is entitled to the same protection of the law that the husband can invoke for
himself.

As time marched on, the women's advocacy movement became more organized. The temperance leagues
initiated it. These leagues had a simple focus. They considered the evils of alcoholism as the root cause of
wife abuse. Hence, they demonstrated and picketed saloons, bars and their husbands' other watering
holes. Soon, however, their crusade was joined by suffragette movements, expanding the liberation
movement's agenda. They fought for women's right to vote, to own property, and more. Since then, the
feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They
succeeded in transforming the issue into an important public concern. No less than the United States
Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of severe
assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands
had assaulted their wives during the past year. The [American Medical Association] views these figures as
"marked underestimates," because the nature of these incidents discourages women from reporting
them, and because surveys typically exclude the very poor, those who do not speak English well, and
women who are homeless or in institutions or hospitals when the survey is conducted. According to the
AMA, "researchers on family violence agree that the true incidence of partner violence is probably double
the above estimates; or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted
by a partner or ex-partner during their lifetime... Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual
assault... In families where wife beating takes place, moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior
alternative...Many abused women who find temporary refuge in shelters return to their husbands, in large
part because they have no other source of income... Returning to one's abuser can be dangerous. Recent
Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United
States are killed by their spouses...Thirty percent of female homicide victims are killed by their male
partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States
Charter and the Universal Declaration of Human Rights affirmed the equality of all human beings. In 1979,
the UN General Assembly adopted the landmark Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also adopted the Declaration
on the Elimination of Violence Against Women. World conferences on the role and rights of women have

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been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a
Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's movements. No
less than Section 14, Article II of our 1987 Constitution mandates the State to recognize the role of women
in nation building and to ensure the fundamental equality before the law of women and men. Our Senate
has ratified the CEDAW as well as the Convention on the Rights of the Child and its two protocols. To cap
it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties therefor
and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and
children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases
reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases
which represent 54.31%. xxx (T)he total number of women in especially difficult circumstances served by
the Department of Social Welfare and Development (DSWD) for the year 2002, there are 1,417 physically
abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total
number of 3,471 cases for the first semester of 2003. Female violence comprised more than 90% of all
forms of abuse and violence and more than 90% of these reported cases were committed by the women's
intimate partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence against
women across an eight-year period from 2004 to August of 2011 with violations under R.A. 9262 ranking
first among the different VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

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 Acts of
Lasciviousne 580 536 382 358 445 485 745 625
ss

Physical 3,55 2,33 1,89 1,50 1,30 1,49

2,018 1,588
Injuries 3 5 2 5 7 8

Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28

RA 9262 218 924 9,974 9,021
9 7 9 5

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,10 12,94

Total
1 4 1 9 5 5 4 8

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men
in the Philippines because incidents thereof are relatively low and, perhaps, because many men will not
even attempt to report the situation. In the United Kingdom, 32% of women who had ever experienced

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domestic violence did so four or five (or more) times, compared with 11% of the smaller number of men
who had ever experienced domestic violence; and women constituted 89% of all those who had
experienced 4 or more incidents of domestic violence.75 Statistics in Canada show that spousal violence
by a woman against a man is less likely to cause injury than the other way around (18 percent versus 44
percent). Men, who experience violence from their spouses are much less likely to live in fear of violence
at the hands of their spouses, and much less likely to experience sexual assault. In fact, many cases of
physical violence by a woman against a spouse are in self-defense or the result of many years of physical
or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to pick
up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-drawing animals
in any public highways, streets, plazas, parks or alleys, said ordinance was challenged as violative of the
guaranty of equal protection of laws as its application is limited to owners and drivers of vehicle-drawing
animals and not to those animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-
drawing animals that also traverse the city roads, "but their number must be negligible and their
appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a menace
to the health of the community."77 The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are
often treated differently and less seriously than other crimes. This was argued by then United States
Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against Women Act
(VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to
"double victimization" – first at the hands of the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the parties to
settle the conflict themselves. Once the complainant brings the case to the prosecutor, the latter is
hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or reluctance
to be involved by the police and prosecution reinforces the escalating, recurring and often serious nature
of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming
of a Judge. He used derogatory and irreverent language in reference to the complainant in a petition for
TPO and PPO under R.A. 9262, calling her as "only a live-in partner" and presenting her as an "opportunist"

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and a "mistress" in an "illegitimate relationship." Judge Amila even called her a "prostitute," and accused
her of being motivated by "insatiable greed" and of absconding with the contested property.81 Such
remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices
against women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against
Women, addressing or correcting discrimination through specific measures focused on women does not
discriminate against men.82 Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory and that
it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant consideration. As a State Party
to the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the social and
cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles for men and women."84 Justice Puno correctly pointed out that
"(t)he paradigm shift changing the character of domestic violence from a private affair to a public offense
will require the development of a distinct mindset on the part of the police, the prosecution and the
judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address
violence committed against women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and children
and guarantees full respect for human rights. The State also recognizes the need to protect the family and
its members particularly women and children, from violence and threats to their personal safety and
security.

Towards this end, the State shall exert efforts to address violence committed against women and children
in keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the
Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination
Against Women, Convention on the Rights of the Child and other international human rights instruments
of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981.
Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October 6,
2003.86 This Convention mandates that State parties shall accord to women equality with men before the
law87 and shall take all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations on the basis of equality of men and women. 88 The Philippines
likewise ratified the Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by said
Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

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Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated,
but to future conditions as well, for as long as the safety and security of women and their children are
threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof
defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or with whom he has
a common child, or against her child whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It
includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex
object, making demeaning and sexually suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing her/him to watch obscene publications and
indecent shows or forcing the woman or her child to do indecent acts and/or make films
thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together
in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force,
threat of force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property,
public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing
the victim to witness the physical, sexual or psychological abuse of a member of the family to which the
victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which
includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the other
spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the
Family Code;

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 2. deprivation or threat of deprivation of financial resources and the right to the use and
enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research
that has exposed the dimensions and dynamics of battery. The acts described here are also found in the
U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the argument advanced by
petitioner that the definition of what constitutes abuse removes the difference between violent action
and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his
defense. The acts enumerated above are easily understood and provide adequate contrast between the
innocent and the prohibited acts. They are worded with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited, and need not guess at its meaning nor differ in
its application.91 Yet, petitioner insists92 that phrases like "depriving or threatening to deprive the woman
or her child of a legal right," "solely controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that they make every quarrel a case
of spousal abuse. However, we have stressed that the "vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it
might have been more explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit.
As defined above, VAWC may likewise be committed "against a woman with whom the person has or had
a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who has or had a
sexual or dating relationship with the woman encompasses even lesbian relationships. Moreover, while
the law provides that the offender be related or connected to the victim by marriage, former marriage,
or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under
the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica
Mari L. Go-Tan, the victim, were held to be proper respondents in the case filed by the latter upon the
allegation that they and their son (Go-Tan's husband) had community of design and purpose in tormenting
her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections afforded
by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated allegations, and
practically no opportunity to respond, the husband is stripped of family, property, guns, money, children,
job, future employment and reputation, all in a matter of seconds, without an inkling of what
happened."95

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A protection order is an order issued to prevent further acts of violence against women and their children,
their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the
offended parties from further harm, minimize any disruption in their daily life and facilitate the
opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing acts
that jeopardize the employment and support of the victim. It also enables the court to award temporary
custody of minor children to protect the children from violence, to prevent their abduction by the
perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented,"99 the court is authorized
to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the
victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the
victim from the immediate and imminent danger of VAWC or to prevent such violence, which is about to
recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim
is required not only to verify the allegations in the petition, but also to attach her witnesses' affidavits to
the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just
like a writ of preliminary attachment which is issued without notice and hearing because the time in which
the hearing will take could be enough to enable the defendant to abscond or dispose of his property,102 in
the same way, the victim of VAWC may already have suffered harrowing experiences in the hands of her
tormentor, and possibly even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process
must yield to the necessities of protecting vital public interests,103 among which is protection of women
and children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice
be immediately given to the respondent directing him to file an opposition within five (5) days from
service. Moreover, the court shall order that notice, copies of the petition and TPO be served immediately
on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days from service
on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of
the notice upon the respondent requiring him to file an opposition to the petition within five (5) days from
service. The date of the preliminary conference and hearing on the merits shall likewise be indicated on
the notice.105

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The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should not
be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the fear of
petitioner of being "stripped of family, property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of an
overactive imagination. The essence of due process is to be found in the reasonable opportunity to be
heard and submit any evidence one may have in support of one's defense. "To be heard" does not only
mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due
process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion
for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise, on May 23,
2006, petitioner filed a motion for the modification of the TPO to allow him visitation rights to his children.
Still, the trial court in its Order dated September 26, 2006, gave him five days (5) within which to show
cause why the TPO should not be renewed or extended. Yet, he chose not to file the required comment
arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal of the
questioned TPO was only for a limited period (30 days) each time, and that he could prevent the continued
renewal of said order if he can show sufficient cause therefor. Having failed to do so, petitioner may not
now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued to the
wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this
is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of
the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects from
the residence, the court shall direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things and escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of
ownership, only temporarily for the purpose of protecting the latter. Such removal and exclusion may be

333
permanent only where no property rights are violated. How then can the private respondent just claim
any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and
counseling, the law has done violence to the avowed policy of the State to "protect and strengthen the
family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a
mediator. The reason behind this provision is well-explained by the Commentary on Section 311 of the
Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order
for protection. Mediation is a process by which parties in equivalent bargaining positions voluntarily reach
consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A
process which involves parties mediating the issue of violence implies that the victim is somehow at fault.
In addition, mediation of issues in a proceeding for an order of protection is problematic because the
petitioner is frequently unable to participate equally with the person against whom the protection order
has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established by
law" and, thus, protests the delegation of power to barangay officials to issue protection orders.111 The
pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection Orders
(BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO
is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay
official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse

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of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government.112 On the other hand, executive power "is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into practical operation and enforcing their due
observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child
physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain public
order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain
facts and to apply the law thereto in order to determine what his official conduct shall be and the fact
that these acts may affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused is
probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that an
imminent danger of violence against the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would be very
unlikely that they would remain objective and impartial, and that the chances of acquittal are nil. As
already stated, assistance by barangay officials and other law enforcement agencies is consistent with
their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict
with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a
manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity must be
beyond reasonable doubt.116 In the instant case, however, no concrete evidence and convincing
arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A. 9262,
which is an act of Congress and signed into law by the highest officer of the co-equal executive
department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever
conscious of the borders and edges of its plenary powers, and passed laws with full knowledge of the facts
and for the purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of law
itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for equality but
will be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

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SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
LIBERTY D. ALBIOS, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the September 29,
2011 Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. 95414, which affirmed the April 25,
2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC). declaring the marriage of Daniel Lee Fringer
(Fringer) and respondent Liberty Albios (A/bios) as void from the beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I. Calo of
the Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as evidenced by a Certificate of
Marriage with Register No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage with
Fringer. She alleged that immediately after their marriage, they separated and never lived as husband and
wife because they never really had any intention of entering into a married state or complying with any
of their essential marital obligations. She described their marriage as one made in jest and, therefore, null
and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed a
motion to set case for pre-trial and to admit her pre-trial brief. The RTC ordered the Assistant Provincial
Prosecutor to conduct an investigation and determine the existence of a collusion. On October 2, 2007,
the Assistant Prosecutor complied and reported that she could not make a determination for failure of
both parties to appear at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the hearing
despite being duly notified of the schedule. After the pre-trial, hearing on the merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of
which reads:

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WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty Albios
and Daniel Lee Fringer as void from the very beginning. As a necessary consequence of this
pronouncement, petitioner shall cease using the surname of respondent as she never acquired any right
over it and so as to avoid a misimpression that she remains the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving credence to the
testimony of Albios, it stated that she contracted Fringer to enter into a marriage to enable her to acquire
American citizenship; that in consideration thereof, she agreed to pay him the sum of $2,000.00; that
after the ceremony, the parties went their separate ways; that Fringer returned to the United States and
never again communicated with her; and that, in turn, she did not pay him the $2,000.00 because he
never processed her petition for citizenship. The RTC, thus, ruled that when marriage was entered into
for a purpose other than the establishment of a conjugal and family life, such was a farce and should not
be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a
motion for reconsideration. The RTC issued the Order, 7 dated February 5, 2009, denying the motion for
want of merit. It explained that the marriage was declared void because the parties failed to freely give
their consent to the marriage as they had no intention to be legally bound by it and used it only as a means
to acquire American citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that the
essential requisite of consent was lacking. The CA stated that the parties clearly did not understand the
nature and consequence of getting married and that their case was similar to a marriage in jest. It further
explained that the parties never intended to enter into the marriage contract and never intended to live
as husband and wife or build a family. It concluded that their purpose was primarily for personal gain, that
is, for Albios to obtain foreign citizenship, and for Fringer, the consideration of $2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A MARRIAGE CONTRACTED
FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP WAS DONEIN JEST, HENCE, LACKING IN THE
ESSENTIAL ELEMENT OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for Fringer to
be paid $2,000.00, both parties freely gave their consent to the marriage, as they knowingly and willingly
entered into that marriage and knew the benefits and consequences of being bound by it. According to

337
the OSG, consent should be distinguished from motive, the latter being inconsequential to the validity of
marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest. The parties
here intentionally consented to enter into a real and valid marriage, for if it were otherwise, the purpose
of Albios to acquire American citizenship would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her marriage
was similar to a marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for review on
certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole
purpose of acquiring American citizenship in consideration of $2,000.00, void ab initio on the ground of
lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for the
purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of
marriage fraud for the sole purpose of availing of particular benefits. In the United States, marriages
where a couple marries only to achieve a particular purpose or acquire specific benefits, have been
referred to as "limited purpose" marriages.11 A common limited purpose marriage is one entered into
solely for the legitimization of a child.12Another, which is the subject of the present case, is for immigration
purposes. Immigration law is usually concerned with the intention of the couple at the time of their
marriage,13 and it attempts to filter out those who use marriage solely to achieve immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service,15 established the principal
test for determining the presence of marriage fraud in immigration cases. It ruled that a "marriage is a
sham if the bride and groom did not intend to establish a life together at the time they were married.
"This standard was modified with the passage of the Immigration Marriage Fraud Amendment of 1986
(IMFA), which now requires the couple to instead demonstrate that the marriage was not "entered into
for the purpose of evading the immigration laws of the United States." The focus, thus, shifted from
determining the intention to establish a life together, to determining the intention of evading immigration
laws.16 It must be noted, however, that this standard is used purely for immigration purposes and,
therefore, does not purport to rule on the legal validity or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited
purpose of immigration is also legally void and in existent. The early cases on limited purpose marriages
in the United States made no definitive ruling. In 1946, the notable case of

338
United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the country,
the parties had agreed to marry but not to live together and to obtain a divorce within six months. The
Court, through Judge Learned Hand, ruled that a marriage to convert temporary into permanent
permission to stay in the country was not a marriage, there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to every
contract; and no matter what forms or ceremonies the parties may go through indicating the contrary,
they do not contract if they do not in fact assent, which may always be proved. x x x Marriage is no
exception to this rule: a marriage in jest is not a marriage at all. x x x It is quite true that a marriage without
subsequent consummation will be valid; but if the spouses agree to a marriage only for the sake of
representing it as such to the outside world and with the understanding that they will put an end to it as
soon as it has served its purpose to deceive, they have never really agreed to be married at all. They must
assent to enter into the relation as it is ordinarily understood, and it is not ordinarily understood as merely
a pretence, or cover, to deceive others.18

(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines,19 which declared as valid a
marriage entered into solely for the husband to gain entry to the United States, stating that a valid
marriage could not be avoided "merely because the marriage was entered into for a limited
purpose."20 The 1980 immigration case of Matter of McKee,21 further recognized that a fraudulent or
sham marriage was intrinsically different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as
problematic. The problem being that in order to obtain an immigration benefit, a legal marriage is first
necessary.22 At present, United States courts have generally denied annulments involving" limited
purpose" marriages where a couple married only to achieve a particular purpose, and have upheld such
marriages as valid.23

The Court now turns to the case at hand.

Respondent’s marriage not void

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was entered into for a
purpose other than the establishment of a conjugal and family life, such was a farce and should not be
recognized from its inception. In its resolution denying the OSG’s motion for reconsideration, the RTC
went on to explain that the marriage was declared void because the parties failed to freely give their
consent to the marriage as they had no intention to be legally bound by it and used it only as a means for
the respondent to acquire American citizenship. Agreeing with the RTC, the CA ruled that the essential
requisite of consent was lacking. It held that the parties clearly did not understand the nature and
consequence of getting married. As in the Rubenstein case, the CA found the marriage to be similar to a
marriage in jest considering that the parties only entered into the marriage for the acquisition of American
citizenship in exchange of $2,000.00. They never intended to enter into a marriage contract and never
intended to live as husband and wife or build a family.

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The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack of consent. Under
Article 2 of the Family Code, consent is an essential requisite of marriage. Article 4 of the same Code
provides that the absence of any essential requisite shall render a marriage void ab initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence of a
solemnizing officer. A "freely given" consent requires that the contracting parties willingly and deliberately
enter into the marriage. Consent must be real in the sense that it is not vitiated nor rendered defective
by any of the vices of consent under Articles45 and 46 of the Family Code, such as fraud, force,
intimidation, and undue influence.24 Consent must also be conscious or intelligent, in that the parties must
be capable of intelligently understanding the nature of, and both the beneficial or unfavorable
consequences of their act.25 Their understanding should not be affected by insanity, intoxication, drugs,
or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real consent
because it was not vitiated nor rendered defective by any vice of consent. Their consent was also
conscious and intelligent as they understood the nature and the beneficial and inconvenient
consequences of their marriage, as nothing impaired their ability to do so. That their consent was freely
given is best evidenced by their conscious purpose of acquiring American citizenship through marriage.
Such plainly demonstrates that they willingly and deliberately contracted the marriage. There was a clear
intention to enter into a real and valid marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete understanding of the legal tie that would be
created between them, since it was that precise legal tie which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized such as akin to a marriage
by way of jest. A marriage in jest is a pretended marriage, legal in form but entered into as a joke, with no
real intention of entering into the actual marriage status, and with a clear understanding that the parties
would not be bound. The ceremony is not followed by any conduct indicating a purpose to enter into such
a relation.27 It is a pretended marriage not intended to be real and with no intention to create any legal
ties whatsoever, hence, the absence of any genuine consent. Marriages in jest are void ab initio, not for
vitiated, defective, or unintelligent consent, but for a complete absence of consent. There is no genuine
consent because the parties have absolutely no intention of being bound in any way or for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest.1âwphi1 Albios and Fringer had an
undeniable intention to be bound in order to create the very bond necessary to allow the respondent to
acquire American citizenship. Only a genuine consent to be married would allow them to further their
objective, considering that only a valid marriage can properly support an application for citizenship. There
was, thus, an apparent intention to enter into the actual marriage status and to create a legal tie, albeit
for a limited purpose. Genuine consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a conjugal
and family life. The possibility that the parties in a marriage might have no real intention to establish a life
together is, however, insufficient to nullify a marriage freely entered into in accordance with law. The
same Article 1 provides that the nature, consequences, and incidents of marriage are governed by law
and not subject to stipulation. A marriage may, thus, only be declared void or voidable under the grounds
provided by law. There is no law that declares a marriage void if it is entered into for purposes other than
what the Constitution or law declares, such as the acquisition of foreign citizenship. Therefore, so long as
all the essential and formal requisites prescribed by law are present, and it is not void or voidable under
the grounds provided by law, it shall be declared valid.28

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Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on
the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the
realm of their right to privacy and would raise serious constitutional questions.29 The right to marital
privacy allows married couples to structure their marriages in almost any way they see fit, to live together
or live apart, to have children or no children, to love one another or not, and so on.30 Thus, marriages
entered into for other purposes, limited or otherwise, such as convenience, companionship, money,
status, and title, provided that they comply with all the legal requisites,31 are equally valid. Love, though
the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other
considerations, not precluded by law, may validly support a marriage.

Although the Court views with disdain the respondent’s attempt to utilize marriage for dishonest
purposes, It cannot declare the marriage void. Hence, though the respondent’s marriage may be
considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and continues to
be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the Family
Code. Only the circumstances listed under Article 46 of the same Code may constitute fraud, namely, (1)
non- disclosure of a previous conv1ctwn involving moral turpitude; (2) concealment by the wife of a
pregnancy by another man; (3) concealment of a sexually transmitted disease; and (4) concealment of
drug addiction, alcoholism, or homosexuality. No other misrepresentation or deceit shall constitute fraud
as a ground for an action to annul a marriage. Entering into a marriage for the sole purpose of evading
immigration laws does not qualify under any of the listed circumstances. Furthermore, under Article 47
(3), the ground of fraud may only be brought by the injured or innocent party. In the present case, there
is no injured party because Albios and Fringer both conspired to enter into the sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with
Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot
declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they
have availed of its benefits, or simply have no further use for it. These unscrupulous individuals cannot be
allowed to use the courts as instruments in their fraudulent schemes. Albios already misused a judicial
institution to enter into a marriage of convenience; she should not be allowed to again abuse it to get
herself out of an inconvenient situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the foundation
of the family and shall be protected by the State.32 It must, therefore, be safeguarded from the whims and
caprices of the contracting parties. This Court cannot leave the impression that marriage may easily be
entered into when it suits the needs of the parties, and just as easily nullified when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals in CA-
G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of merit.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

EN BANC

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G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,

INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIÑO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN
AND EDWIN MARTHINE LOPEZ, Respondents.

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE AUTHORITY OF THE
DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP.
TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE
UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO,
DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL
CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE
PHILIPPINES, INC. Petitioner-in-Intervention.

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE

SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA
III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, Respondents.

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),

MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON,
MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

DECISION

VILLARAMA, JR., J.:

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The consolidated petitions before Us seek the reversal of the Decision1 dated May 17, 2013 and
Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which
permanently enjoined the conduct of field trials for genetically modified eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace Southeast
Asia, a regional office of Greenpeace International registered in Thailand.3 Greenpeace is a non-
governmental environmental organization which operates in over 40 countries and with an international
coordinating body in Amsterdam, Netherlands. It is well known for independent direct actions in the
global campaign to preserve the environment and promote peace.

Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an
international non-profit organization founded in 1990 "to facilitate the acquisition and transfer of
agricultural biotechnology applications from the industrial countries, for the benefit of resource-poor
farmers in the developing world" and ultimately "to alleviate hunger and poverty in the developing
countries." Partly funded by the United States Agency for International Development (USAID), ISAAA
promotes the use of agricultural biotechnology, such as genetically modified organisms (GMOs).4

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition of local

farmers, scientists and NGOs working towards "the sustainable use and management of biodiversity
through farmers' control of genetic and biological resources, agricultural production, and associated
knowledge."

The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the University of the
Philippines (UP), originally established as the UP College of Agriculture. It is the center of biotechnology
education and research in Southeast Asia and home to at least four international research and extension
centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is a private corporation organized "to be an instrument
for institutionalizing a rational system of utilizing UPLB expertise and other assets for generating
additional revenues and other resources needed by [UPLB]". Its main purpose is to assist UPLB in
"expanding and optimally utilizing its human, financial, and material resources towards a focused thrust
in agriculture, biotechnology, engineering and environmental sciences and related academic programs
and activities." A memorandum of agreement between UPLBFI and UPLB allows the former to use
available facilities for its activities and the latter to designate from among its staff such personnel needed
by projects.5

Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908. Under its
new charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria Macapagal-Arroyo, UP
was declared as the national university tasked "to perform its unique and distinctive leadership in higher
education and development." Among others, UP was mandated to "serve as a research university in
various fields of expertise and specialization by conducting basic and applied research and development,
and promoting research in various colleges and universities, and contributing to the dissemination and
application of knowledge."7

The other individual respondents are Filipino scientists, professors, public officials and ordinary citizens
invoking their constitutionally guaranteed right to health and balanced ecology, and suing on their behalf
and on behalf of future generations of Filipinos.

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Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses living
organisms or substances from those organisms to make or modify a product, to improve plants or animals,
or to develop microorganisms for specific uses."8 Its many applications include agricultural production,
livestock, industrial chemicals and pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the establishment of the National
Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the premier national
research and development (R & D) institution applying traditional and modern biotechnologies in
innovating products, processes, testing and analytical services for agriculture, health, energy, industry and
development.9

In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the National
Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others, to "identify and
evaluate potential hazards involved in initiating genetic engineering experiments or the introduction of
new species and genetically engineered organisms and recommend measures to minimize risks" and to
"formulate and review national policies and guidelines on biosafety, such as the safe conduct of work on
genetic engineering, pests and their genetic materials for the protection of public health, environment
and personnel and supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of the
importation or introduction, movement and field release of potentially hazardous biological materials in
the Philippines. The guidelines also describe the required physical and biological containment and safety
procedures in handling biological materials. This was followed in 1998 by the "Guidelines on Planned
Release of Genetically Manipulated Organisms (GMOs) and Potentially Harmful Exotic Species (PHES)."10

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral
treaty recognized that "modern biotechnology has great potential for human well-being if developed and
used with adequate safety measures for the environment and human health." Its main objectives, as
spelled out in Article 1, are the "conservation of biological diversity, the sustainable use of its components
and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena Protocol),
a supplemental to the CBD. The Cartagena Protocol aims "to contribute to ensuring an adequate level of
the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that
may have adverse effects on the conservation and sustainable use of biological diversity, taking into
account risks to human health, and specifically focusing on transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September 11,
2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the "Resolution
Concurring in the Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN Convention on
Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the government
policy of promoting the safe and responsible use of modern biotechnology and its products as one of
several means to achieve and sustain food security, equitable access to health services, sustainable and
safe environment and industry development.11

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In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08 providing
rules and regulations for the importation and release into the environment of plants and plant products
derived from the use of modem biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has been
altered or produced through the use of modem biotechnology if the donor organism, host organism, or
vector or vector agent belongs to the genera or taxa classified by the Bureau of Plant Industry (BPI) as
meeting the definition of plant pest or is a medium for the introduction of noxious weeds; or (2) any plant
or plant product altered through the use of modem biotechnology which may pose significant risks to
human health and the environment based on available scientific and technical information.

The country's biosafety regulatory system was further strengthened with the issuance of EO No. 514 (EO
514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF), Prescribing Guidelines for
its Implementation, and Strengthening the NCBP." The NBF shall apply to the development, adoption and
implementation of all biosafety policies, measures and guidelines and in making decisions concerning the
research, development, handling and use, transboundary movement, release into the environment and
management of regulated articles.12

EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO 08-2002,
the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except for provisions on
potentially harmful exotic species which were repealed, and all issuances of the Bureau of Food and Drugs
Authority (FDA) on products of modem biotechnology, shall continue to be in force and effect.13

On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between UPLBFI, ISAAA
and UP Mindanao Foundation, Inc.

(UPMFI), in pursuance of a collaborative research and development project on eggplants that are resistant
to the fruit and shoot borer. Other partner agencies involved in the project were UPLB through its Institute
of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University and the
Agricultural Biotechnology Support Project II (ABSPII) of US AID.

As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the pest-
resistant crop subject of the field trial was described as a "bioengineered eggplant." The crystal toxin
genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong)
genome to produce the protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to be
highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive insect
pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and officially
completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of Contained Experiment
stating that "During the conduct of the experiment, all the biosafety measures have been complied with
and no untoward incident has occurred."16

BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field testing of Bt
talong commenced on various dates in the following approved trial sites: Kabacan, North Cotabato; Sta.
Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

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On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed a petition
for writ of kalikasan and writ of continuing mandamus with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO). They alleged that the Bt talong field trials violate their
constitutional right to health and a balanced ecology considering that (1) the required environmental
compliance certificate under Presidential Decree (PD) No. 1151 was not secured prior to the project
implementation; (2) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human
health and the environment, and there is no independent, peer-reviewed study on the safety of Bt
talong for human consumption and the environment; (3) a study conducted by Professor Gilles-Eric
Seralini showed adverse effects on rats who were fed Bt corn, while local scientists also attested to the
harmful effects of GMOs to human and animal health; (4) Bt crops can be directly toxic to non-target
species as highlighted by a research conducted in the US which demonstrated that pollen from Bt maize
was toxic to the Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that beneficial insects
have increased mortality when fed on larvae of a maize pest, the corn borer, which had been fed on Bt,
and hence non-target beneficial species that may feed on eggplant could be similarly affected; (6) data
from China show that the use of Bt crops (Bt cotton) can exacerbate populations of other secondary pests;
(7) the built-in pesticides of Bt crops will lead to Bt resistant pests, thus increasing the use of pesticides
contrary to the claims by GMO manufacturers; and (8) the 200 meters perimeter pollen trap area in the
field testing area set by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because
pollinators such as honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated.
The full acceptance by the project proponents of the findings in the MAHYCO Dossier was strongly assailed
on the ground that these do not precisely and adequately assess the numerous hazards posed by Bt
talong and its field trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the required
public consultation under Sections 26 & 27 of the Local Government Code, A random survey by
Greenpeace on July 21, 2011 revealed that ten households living in the area immediately around the Bt
talong experimental farm in Bay, Laguna expressed lack of knowledge about the field testing in their
locality. The Sangguniang Barangay of Pangasugan in Baybay, Leyte complained about the lack of
information on the nature and uncertainties of the Bt talong field testing in their barangay. The Davao
City Government likewise opposed the project due to lack of transparency and public consultation. It
ordered the uprooting of Bt eggplants at the trial site and disposed them strictly in accordance with
protocols relayed by the BPI through Ms. Merle Palacpac. Such action highlighted the city government's
policy on "sustainable and safe practices." On the other hand, the Sangguniang Bayan of Sta. Barbara,
Iloilo passed a resolution suspending the field testing due to the following: lack of public consultation;
absence of adequate study to determine the effect of Bt talong field testing on friendly insects; absence
of risk assessment on the potential impacts of genetically modified (GM) crops on human health and the
environment; and the possibility of cross-pollination of Bt eggplants with native species or variety of
eggplants, and serious threat to human health if these products were sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary principle, the Bt
talong field testing being a classic environmental case where scientific evidence as to the health,
environmental and socio-economic safety is insufficient or uncertain and preliminary scientific evaluation
indicates reasonable grounds for concern that there are potentially dangerous effects on human health
and the environment.

The following reliefs are thus prayed for:

a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i)
enjoining public respondents BPI and FPA of the DA from processing for field testing, and registering as

346
herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field testing
of Bt talong anywhere in the Philippines; and (in) ordering the uprooting of planted Bt talong for field
trials as their very presence pose significant and irreparable risks to human health and the environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement system under
the Environmental Management Bureau;

(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests report,
regulatory compliance reports and supporting documents, and other material particulars of the Bt
talong field trial;

(iii) Respondents to submit all its issued certifications on public information, public consultation, public
participation, and consent of the local government units in the barangays, municipalities, and provinces
affected by the field testing of Bt talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in consultation with
stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety Framework of
the Philippines, and DA Administrative Order No. 08, defining or incorporating an independent,
transparent, and comprehensive scientific and socio-economic risk assessment, public information,
consultation, and participation, and providing for their effective implementation, in accord with
international safety standards; and,

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct balanced
nationwide public information on the nature of Bt talong and Bt talong field trial, and a survey of social
acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their respective
returns and explain why they should not be judicially sanctioned for violating or threatening to violate or
allowing the violation of the above-enumerated laws, principles, and international principle and
standards, or committing acts, which would result into an environmental damage of such magnitude as
to prejudice the life, health, or property of petitioners in particular and of the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found to be
violating the abovementioned laws, principles, and international standards; and recommend to Congress
curative legislations to effectuate such order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management Bureau
(EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-a ordering them to make a verified return
within a non-extendible period often (10) days, as provided in Sec. 8, Rule 7 of the Rules of Procedure for
Environmental Cases.19

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued that the
issuance of writ of kalikasan is not proper because in the implementation of the Bt talong project, all
environmental laws were complied with, including public consultations in the affected communities, to
ensure that the people's right to a balanced and healthful ecology was protected and respected. They also
asserted that the Bt talong project is not covered by the Philippine Environmental Impact Statement
(PEIS) Law and that Bt talong field trials will not significantly affect the quality of the environment nor
pose a hazard to human health. ISAAA contended that the NBF amply safeguards the environment policies

347
and goals promoted by the PEIS Law. On its part, UPLBFI asserted that there is a "plethora of scientific
works and literature, peer-reviewed, on the safety of Bt talong for human consumption."20 UPLB, which
filed an Answer21 to the petition before the CA, adopted said position of UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the field trial
stage as none of the eggplants will be consumed by humans or animals, and all materials that will not be
used for analyses will be chopped, boiled and buried following the Biosafety Permit requirements. It cited
a 50-year history of safe use and consumption of agricultural products sprayed with
commercial Bt microbial pesticides and a 14-year history of safe consumption of food and feed derived
from Bt crops. Also mentioned is the almost 2 million hectares of land in the Philippines which have been
planted with Bt corn since 2003, and the absence of documented significant and negative impact to the
environment and human health. The statements given by scientists and experts in support of the
allegations of Greenpeace, et al. on the safety of Bt corn was also addressed by citing the contrary findings
in other studies which have been peer-reviewed and published in scientific journals.

On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for non-
observance of the rule on hierarchy of courts and the allegations therein being mere assertions and
baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of Greenpeace, et al. in filing
the petition for writ of kalikasan as they do not stand to suffer any direct injury as a result of the Bt
talong field tests. They likewise prayed for the denial of the petition for continuing mandamus for failure
to state a cause of action and for utter lack of merit.

UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they have been
prejudiced or damaged, or their constitutional rights to health and a balanced ecology were violated or
threatened to be violated by the conduct of Bt talong field trials. Insofar as the field trials in Davao City,
the actual field trials at Bago Oshiro started on November 25, 2010 but the plants were uprooted by Davao
City officials on December 17-18, 2010. There were no further field trials conducted and hence no
violation of constitutional rights of persons or damage to the environment, with respect to Davao City,
occurred which will justify the issuance of a writ of kalikasan. UPMFI emphasized that under the MOU, its
responsibility was only to handle the funds for the project in their trial site. It pointed out that in the Field
Trial Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and Terminal Report (Davao
City Government) by respondent Leonardo R. Avila III, nowhere does UPMFI appear either as project
proponent, partner or implementing arm. Since UPMFI, which is separate and distinct from UP, undertook
only the fund management of Bt talong field test project the duration of which expired on July 1, 2011, it
had nothing to do with any field trials conducted in other parts of the country.

Finally, it is argued that the precautionary principle is not applicable considering that the field testing is
only a part of a continuing study being done to ensure that the field trials have no significant and negative
impact on the environment. There is thus no resulting environmental damage of such magnitude as to
prejudice the life, health, property of inhabitants in two or more cities or provinces. Moreover, the issues
raised by Greenpeace, et al. largely involve technical matters which pertain to the special competence of
BPI whose determination thereon is entitled to great respect and even finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the return of
the writ and for hearing, reception of evidence and rendition of judgment.22

CA Proceedings and Judgment

348
At the preliminary conference held on September 12, 2012, the parties submitted the following
procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file the petition for writ
of kalikasan; (2) whether or not said petition had been rendered moot and academic by the alleged
termination of the Bt talong field testing; and (3) whether or not the case presented a justiciable
controversy.

Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al. possess the
requisite legal standing to file the petition for writ of kalikasan; (2) assuming arguendo that the field trials
have already been terminated, the case is not yet moot since it is capable of repetition yet evading review;
and (3) the alleged non-compliance with environmental and local government laws present justiciable
controversies for resolution by the court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein the expert
witnesses of both parties testify at the same time. Greenpeace, et al. presented the following as expert
witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr. Medina), and Dr. Tushar
Chakraborty (Dr. Chakraborty). On the opposing side were the expert witnesses in the persons of Dr.
Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cariño (Dr. Cariño), and Dr. Peter
Davies (Dr. Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle
Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent Motion for
Leave to Intervene as Respondent.24 It claimed to have a legal interest in the subject matter of the case as
a broad-based coalition of advocates for the advancement of modern biotechnology in the Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating that the
latter had no direct and specific interest in the conduct of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the
petition filed in this case. The respondents are DIRECTED to:chanRoblesvirtualLawlibrary

(a) Permanently cease and desist from further conducting bt talong field trials; and

(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing
judgment of this Court.

No costs.

SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and Technology
(DOST) are insufficient to guarantee the safety of the environment and health of the people. Concurring
with Dr. Malayang's view that the government must exercise precaution "under the realm of public policy"
and beyond scientific debate, the appellate court noted the possible irreversible effects of the field trials
and the introduction of Bt talong to the market.

After scrutinizing the parties' arguments and evidence, the CA concluded that the precautionary principle

349
set forth in Section 1, Rule 20 of the Rules of Procedure for Environmental Cases27 finds relevance in the
present controversy. Stressing the fact that the "over-all safety guarantee of the bt talong" remains
unknown, the appellate court cited the testimony of Dr. Cariño who admitted that the product is not yet
safe for consumption because a safety assessment is still to be done. Again, the Decision quoted from Dr.
Malayang who testified that the question of Bt talong's safety demands maximum precaution and utmost
prudence, bearing in mind the country's rich biodiversity. Amid the uncertainties surrounding the Bt
talong, the CA thus upheld the primacy of the people's constitutional right to health and a balanced
ecology.

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in its
Resolution dated September 20, 2013 rejected the argument of UPLB that the appellate court's ruling
violated UPLB's constitutional right to academic freedom. The appellate court pointed out that the writ
of kalikasan originally issued by this Court did not stop research on Bt talong but only the particular
procedure adopted in doing field trials and only at this time when there is yet no law in the form of a
congressional enactment for ensuring its safety and levels of acceptable risks when introduced into the
open environment. Since the writ stops the field trials of Bt talong as a procedure but does not stop Bt
talong research, there is no assault on academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a genetically modified plant
into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic (living)
and non-biotic things interacting as a living community in a particular space and time. In the ecosystem
are found specific and particular biotic and non-biotic entities which depend on each other for the biotic
entities to survive and maintain life. A critical element for biotic entities to maintain life would be that
their populations are in a proper and natural proportion to others so that, in the given limits of available
non-biotic entities in the ecosystem, no one population overwhelms another. In the case of the
Philippines, it is considered as one of the richest countries in terms of biodiversity. It has so many plants
and animals. It also has many kinds of other living things than many countries in the world. We do not
fully know how all these living things or creatures interact among themselves. But, for sure, there is a
perfect and sound balance of our biodiversity as created or brought about by God out of His infinite and
absolute wisdom. In other words, every living creature has been in existence or has come into being for
a purpose. So, we humans are not supposed to tamper with any one element in this swirl of
interrelationships among living things in our ecosystem. Now, introducing a genetically modified plant in
our intricate world of plants by humans certainly appears to be an ecologically imbalancing act. The
damage that it will cause may be irreparable and irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on November 20,
2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant [Physiology]),
Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito Medina (Ph.D in
Environmental Biology), Dr. Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida Cariño (Ph.D in Insecticide
Toxicology), Dr. Ben Malayang (Ph.D in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in
Genetics) were in unison in admitting that bt talong is an altered plant. x x x

x x x x

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an
otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder relationships of
the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter its natural order which is

350
meant to eliminate one feeder (the borer) in order to give undue advantage to another feeder (the
humans). The genetic transformation is one designed to make bt talong toxic to its pests (the targeted
organisms). In effect, bt talong kills its targeted organisms. Consequently, the testing or introduction
of bt talong into the Philippines, by its nature and intent, is a grave and present danger to (and an
assault on) the Filipinos' constitutional right to a balanced ecology because, in any book and by any
yardstick, it is an ecologically imbalancing event or phenomenon. It is a willful and deliberate tampering
of a naturally ordained feed-feeder relationship in our environment. It destroys the balance of our
biodiversity. Because it violates the conjunct right of our people to a balanced ecology, the whole
constitutional right of our people (as legally and logically construed) is violated.

Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain. This is
because while, on one hand, no Filipinos has ever eaten it yet, and so, there is no factual evidence of it
actually causing acute or chronic harm to any or a number of ostensibly identifiable perms, on the other
hand, there is correspondingly no factual evidence either of it not causing harm to anyone. However, in a
study published on September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by
Professor Gilles-Eric Seralini from the University of Caen and backed by the France-based Committee of
Independent Research and Information on Genetic Engineering came up with a finding that rats fed with
Roundup-tolerant genetically modified corn for two years developed cancers, tumors and multiple organ
damage. The seven expert witnesses who testified in this Court in the hearing conducted on November
20, 2012 were duly confronted with this finding and they were not able to convincingly rebut it. That is
why we, in deciding this case, applied the precautionary principle in granting the petition filed in the case
at bench.

Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually uncertain, the
entire constitutional right of the Filipino people to a balanced and healthful ecology is at risk. Hence, the
issuance of the writ of kalikasan and the continuing writ of mandamus is justified and
warranted.28 (Additional Emphasis supplied.)
Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:

I

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS ALREADY MOOT
AND ACADEMIC.

II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES POLITICAL
QUESTIONS.

A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT

OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE PHILIPPINES,

351
 AND DA ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE COURT OF
APPEALS "RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK
TO REVIEW THE WISDOM OF THE PHILIPPINE REGULATORY SYSTEM FOR GMOS, WHICH
THE COURT OF APPEALS IS WITHOUT JURISDICTION TO DO SO.

B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING THE
STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND COMPLETELY
DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED TO
EXHAUST ADMINISTRATIVE REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION OVER
THE SAME LIES WITH THE REGULATORY AGENCIES.

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE WHEN IT
RENDERED THE ASSAILED DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013.

VI

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF
RESPONDENTS.

A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT TALONG
FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN
ORDER TO ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY
ARE PROTECTED AND RESPECTED.

B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT CAUSE
ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND PROPERTY
OF INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE

IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT AN IOTA OF
EVIDENCE TO PROVE THEIR CLAIM.

VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS AGAINST
PETITIONER ISAAA.

352
VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013
IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails the CA
Decision granting the petition for writ of kalikasan and writ of continuing mandamus despite the failure
of Greenpeace, et al. (respondents) to prove the requisites for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly show signs of
toxicity in genetically engineered eggplant and other crops, these studies are insubstantial as they were
not published in peer-reviewed scientific journals. Respondents thus failed to present evidence to prove
their claim that the Bt talong field trials violated environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its application in this case is
misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not formally offered in
evidence. In volunteering the said article to the parties, petitioners lament that the CA manifested its bias
towards respondents' position and did not even consider the testimony of Dr. Davies who stated that
"Seralini's work has been refuted by International committees of scientists"30 as shown by published
articles critical of Seralini's work.

Petitioners aver that there was no damage to human health since no Bt talong will be ingested by any
human being during the field trial stage. Besides, if the results of said testing are adverse, petitioners will
not allow the release of Bt talong to the environment, in line with the guidelines set by EO 514. The CA
thus misappreciated the regulatory process as approval for field testing does not automatically mean
approval for propagation of the same product. And even assuming that the field trials may indeed cause
adverse environmental or health effects, the requirement of unlawful act or omission on the part of
petitioners or any of the proponents, was still absent. Respondents clearly failed to prove there was any
unlawful deviation from the provisions of DAO 08-2002. The BPI's factual finding on the basis of risk
assessment on the Bt talong project should thus be accorded respect, if not finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for them to protect,
preserve, rehabilitate and restore the environment, lacking in specifics which only indicates that there
was really nothing to preserve, rehabilitate or restore as there was nothing damaged or adversely affected
in the first place. As to the supposed inadequacy and ineffectiveness of existing regulations, these are all
political questions and policy issues best left to the discretion of the policy-makers, the Legislative and
Executive branches of government. Petitioners add that the CA treads on judicial legislation when it
recommended the re-examination of country's existing laws and regulations governing studies and
research on GMOs.

GR. No. 209301

Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary to prove
actual or imminent injury to them or the environment as to render the controversy ripe for judicial
determination. It points out that nowhere in the testimonies during the "hot-tub" presentation of expert
witnesses did the witnesses for respondents claim actual or imminent injury to them or to the

353
environment as a result of the Bt talong field tests, as they spoke only of injury in the speculative,
imagined kind without any factual basis. Further, the petition for writ of kalikasan has been mooted by
the termination of the field trials as of August 10, 2012.

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of the nature,
character, scale, duration, design, processes undertaken, risk assessments and strategies employed,
results heretofore recorded, scientific literature, the safeguards and other precautionary measures
undertaken and applied, the Bt talong field tests did not or could not have violated the right of
respondents to a balanced and healthful ecology. The appellate court apparently misapprehended the
nature, character, design of the field trials as one for "consumption" rather than for "field testing" as
defined in DAO 08-2002, the sole purpose of which is for the "efficacy" of the eggplant variety's resistance
to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by
competent evidence on record" (admitted exhibits)31:
118. Since the technology's inception 50 years ago, studies have shown that genetically modified
crops, including Bt talong, significantly reduce the use of pesticides by farmers in growing
eggplants, lessening pesticide poisoning to humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-resistant
genetically modified crops. Moreover, that insect-resistant genetically modified crops
significantly reduce the use of pesticides in growing plants thus lessening pesticide poisoning in
humans, reducing pesticide load in the environment and encouraging more biodiversity in
farms.

120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian cotton
industry by largely controlling Lepidopteran pests. To date, it had no significant impact on the
invertebrate community studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory
heteropterans and, therefore, cultivation of Bt cotton may provide an opportunity for
conservation of these predators in cotton ecosystems by reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not negatively
affect monarch butterflies.

354
 124. The field trials will not cause "contamination" as feared by the petitioners because flight
distance of the pollinators is a deterrent to cross pollination. Studies reveal that there can be
no cross pollination more than a fifty (50) meter distance.

xxx
x

135. There is a 50 year history of safe use and consumption of agricultural products sprayed with
commercial Bt microbial pesticides and a 14 year history of safe consumption of food and feed
derived from Bt crops.

xxx
x

140. In separate reviews by the European Food Safety Agency (EFSA) and the Food Standards
Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied upon by
[respondents] was dismissed as "scientifically flawed", thus providing no plausible basis to the
proposition that Bt talong is dangerous to public health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized Biotech/GM
Crops: 2011," the Philippines was cited to be the first country in the ASEAN region to implement
a regulatory system for transgenic crops (which includes DAO 08-[2]002). Accordingly, the said
regulatory system has also served as a model for other countries in the region and other
developing countries outside of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The testimonial
and documentary evidence of respondents, taken together, do not amount to "scientifically plausible"
evidence of threats of serious and irreversible damage to the environment. In fact, since BPI started
regulating GM crops in 2002, they have monitored 171 field trials all over the Philippines and said agency
has not observed any adverse environmental effect caused by said field trials. Plainly, respondents failed
to show proof of "specific facts" of environmental damage of the magnitude contemplated under
the Rules of Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of scientists
and other academicians of UP, of which they have been deprived without due process of law. Stressing
that a possibility is not a fact, UPLBFI deplores the CA decision's pronouncement of their guilt despite the
preponderance of evidence on the environmental safety of the field trials, as evident from its declaration
that "the over-all safety guarantee of Bt talong remains to be still unknown." It thus asks if in the
meantime, petitioners must bear the judicial stigma of being cast as violators of the right of the people to

355
a balanced and healthful ecology for an injury or damage unsubstantiated by evidence of scientific
plausibility.

G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the exercise
of UPLB's academic freedom, which is a constitutional right. In this case, there is nothing based on
evidence on record or overwhelming public welfare concern, such as the right of the people to a balanced
and healthful ecology, which would warrant restraint on UPLB's exercise of academic freedom.
Considering that UPLB complied with all laws, rules and regulations regarding the application and conduct
of field testing of GM eggplant, and was performing such field tests within the prescribed limits of DAO
08-2002, and there being no harm to the environment or prejudice that will be caused to the life, health
or property of inhabitants in two or more cities or provinces, to restrain it from performing the said field
testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this case, in violation
of the standards set by the Rules of Procedure for Environmental Cases. It points out that the Bt eggplants
are not yet intended to be introduced into the Philippine ecosystem nor to the local market for human
consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who is an
entomologist and expert in integrated pest management and insect taxonomy, and Dr. Davies, a member
of the faculty of the Department of Plant Biology and Horticulture at Cornell University for 43 years and
served as a senior science advisor in agricultural technology to the United States Department of State.
Both had testified that based on generally accepted and scientific methodology, the field trial of Bt crops
do not cause damage to the environment or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It asserts that
the CA could not support its Decision and Resolution on the pure conjectures and imagination of one
witness. Basic is the rule that a decision must be supported by evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country precisely because of
the serious safety concerns on the impact of Bt talong toxin on human and animal health and the
environment through field trial contamination. They point out that the inherent and potential risks and
adverse effects of GM crops are recognized in the Cartagena Protocol and our biosafety regulations (EO
514 and DAO 08-2002). Contamination may occur through pollination, ingestion by insects and other
animals, water and soil run off, human error, mechanical accident and even by stealing was inevitable in
growing Bt talong in an open environment for field trial. Such contamination may manifest even after
many years and in places very far away from the trial sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission,
respondents assert that, in the face of scientific uncertainties on the safety and effects of Bt talong,
petitioners omitted their crucial duties to conduct environmental impact assessment (EIA); evaluate
health impacts; get the free, prior and informed consent of the people in the host communities; and
provide remedial and liability processes in the approval of the biosafety permit and conduct of the field
trials in its five sites located in five provinces. These omissions have put the people and the environment

356
at serious and irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic Crops/Foods: A
Compilation of Scientific References with Abstracts" printed by Coalition for a GMO-Free India; a study
on Bt corn in the Philippines, "Socio-economic Impacts of Genetically Modified Corn in the Philippines"
published by MASIPAG in 2013; and the published report of the investigation conducted by Greenpeace,
"White Corn in the Philippines: Contaminated with Genetically Modified Corn Varieties" which revealed
positive results for samples purchased from different stores in Sultan Kudarat, Mindanao, indicating that
they were contaminated with GM corn varieties, specifically the herbicide tolerant and Bt insect resistant
genes from Monsanto, the world's largest biotech company based in the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following sources: the studies
of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI Vazquez-Padron, all from the
Universidad Nacional Autonoma de Mexico; the conclusion made by Prof. Eric-Gilles Seralini of the
University of Caen, France, who is also the president of the Scientific Council of the Committee for
Independent Research and Information on Genetic Engineering (CRIIGEN), in his review, commissioned by
Greenpeace, of Mahyco's data submitted in support of the application to grow and market Bt eggplant in
India; and the medical interpretations of Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano of
the University of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St. Luke's Medical
Center (Joint Affidavit).

According to respondents, the above findings and interpretations on serious health risks are strengthened
by the findings of a review of the safety claims in the MAHYCO Dossier authored by Prof. David A. Andow
of the University of Minnesota, an expert in environmental assessment in crop science. The review was
made upon the request in 2010 of His Honorable Shri Jairam Ramesh of the Ministry of Environment and
Forests of India, where MAHYCO is based. MAHYCO is the corporate creator and patent owner of
the Bt gene inserted in Bt talong.

The conclusions of health hazards from the above studies were summarized32 by respondents, as follows:
Studies/interpretation by Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, R. For Bt modified crops (like Bt talong), there is concern over
Gutierrez, R. its potential

Lopez-Revilla, and RI Vazquez-Padron allergenicity. CrylAcc (the gene inserted in Bt talong)

protoxin is a potent immunogen (triggers immune
response); the protoxin is immunogenic by both the
intraperitoneal (injected) and intragastric (ingested) route;
the immune response to the protoxin is both systemic and
mucosal; and CrylAcc protoxin binds to surface proteins in
the mouse small intestine. These suggest that extreme
caution is required in the use of CrylAcc in food crops.

Prof. Eric-Gilles Seralini His key findings showed statistical significant differences
between group of animals fed GM and non-GM eggplant
that raise food safety concerns and warrant further
investigation.

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 Dr. Romeo Quijano & Dr. Wency Kiat, Jr. Interpreting Prof. Seralini's findings, the altered condition of
rats symptomatically indicate hazards for human health.

Prof. David A. Andow The MAHYCO dossier is inadequate to support the needed
environmental risk assessment; MAHYCO's food safety
assessment does not comply with international standards;
and that MAHYCO relied on dubious scientific assumptions
and disregarded real environmental threats.
As to environmental effects, respondents said these include the potential for living modified organisms,
such as Bt talong tested in the field or released into the environment, to contaminate non-GM traditional
varieties and other wild eggplant relatives and turn them into novel pests, outcompete and replace their
wild relatives, increase dependence on pesticides, or spread their introduced genes to weedy relatives,
potentially creating superweeds, and kill beneficial insects.

Respondents then gave the following tabulated summary33 of field trial contamination cases drawn from
various news reports and some scientific literature submitted to the court:
What happened Impact How did it occur

During 2006 and 2007, traces of
three varieties of unapproved
genetically modified rice owned
by Bayer Crop Science were found
in US rice exports in over 30
countries worldwide.
In July 2011, Bayer eventually agreed Field trials were
to a $750m US dollar settlement conducted between the
resolving claims with about 11,000 mid-1990s and early
US farmers for market losses and 2000s. The US
clean-up costs. Department of
Agriculture (USDA)
The total costs to the rice industry reported these field trials
are likely to have been over $1bn were the likely sources of
worldwide. the contamination
between the modified
rice and conventional
varieties. However, it was
unable to conclude [if it]
was caused by gene flow
(cross pollination) or
mechanical mixing.

In 2009, unauthorised GElinseed
(also known as 'flax') produced by
a public research institution was
discovered in food in several EU
countries, having been imported
from Canada.
Canada lost exports to its main In the late 1980s a public
European market worth hundreds of research institution, the
millions of dollars and non-GElinseed Crop Development
farmers have faced huge costs and Centre in Saskatoon,
market losses. Saskat-chewan,
developed a GElinseed
variety FP96—believed to
be the origin of the
contamination.

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During 2004, the Thai government
found that papaya samples from
85 farms were genetically
modified. The contamination
continued into 2006 and it is likely
that the GE contamination
reached the food chain.
In the US in 2002, seeds from a
GEmaize pharma-crop containing
a pig vaccine grew independently
among normal soybean crops.
In 2005, Greenpeace discovered
that GE rice seeds had been
illegally sold in Hubei, China.
Then, in 2006, GE rice event Bt63
was found in baby food sold in
Beijing, Guangzhou and Hong
Kong. In late 2006, GE rice Bt63
was found to be contaminating
exports in Austria, France, the UK
and Germany. In 2007 it was again
found in EU imports to Cyprus,
Germany, Greece, Italy and
Sweden.
Exports of papaya to Europe have
been hit because of fears that
contamination could have spread.
The Thai government said it was
taking action to destroy the
contaminated trees.
Prodigene, the company responsible,
was fined $3m for tainting half a
million bushels of soya bean with a
trial vaccine used to prevent stomach
upsets in piglets. Prodigene agreed
to pay a fine of $250,000 and to
repay the government for the cost of
incinerating the soya bean that had
been contaminated with genetically
altered corn.
The European Commission adopted
emergency measures (on 15 August
2008) to require compulsory
certification for the imports of
Chinese rice products that could
contain the unauthorised GE rice
Bt63.
The Chinese government took
several measures to try to stop the
contamination, which included
punishing seed companies,
confiscating GEseed, destroying
GErice grown in the field and
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GEpapaya is not grown
commercially in Thailand,
so it was clear that the
contamination originated
from the government
station experimentally
breeding GE papaya
trees. Tests that showed
that one third of papaya
orchards tested in the
eastern province of
Rayong and the north-
eastern provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GE-
contaminated papaya
seeds in July 2005. The
owners said that a
research station gave
them the seeds.
Seeds from the GEmaize
crop sprouted voluntarily
in the following season.
The source of the
contamination appears to
have been the result of
illegal planting of
GEseeds. Seed companies
in China found to have
sold GErice hybrid seed to
farmers operated directly
under the university
developing GM rice. It has
been reported that the
key scientist sat on the
board of one GEseed
company.
 tightening control over the food
chain.

In 2005, the European The European Commission blocked The contamination arose
Commission announced that US grain import unless they could be because Syngenta's
illegal Bt10 GEmaize produced by guaranteed free of Bt10. The USDA quality control
GEseed company Syngenta had fined Syngenta $375,000. There are procedures did not
entered the European food chain. no figures for the wider costs. differentiate between
The GEmaize Bt10 contains a Bt10 and its sister
marker gene that codes for the commercial line, Bt11. As
widely-used antibiotic ampicillin, a result, the experimental
while the Bt11 does not. and substantially
According to the international different Bt10 line was
Codex Alimentarius Guideline for mistakenly used in
Conduct of Food Safety breeding. The error was
Assessment of Foods Derived detected four years later
from Recombinant-DNA:Plants: when one of the seed
'Antibiotic resistance genes used companies developing
in food production that encode Bt11 varieties adopted
resistance to clinically used more sophisticated
antibiotics should not be present analytical techniques.
in foods' because it increases the
risk of antibiotic resistance in the
population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt talong field
trial is isolated, restricted and that "each experiment per site per season consists of a maximum net area
planted to Bt eggplant of between 480 sq. meters to 1,080 sq. meters,"34 respondents emphasize that as
shown by the above, contamination knows no size and boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the issuance of writ
of kalikasan, respondents assert that while the Bt talong field trials were conducted in only five provinces,
the environmental damage prejudicial to health extends beyond the health of the present generation of
inhabitants in those provinces.

On petitioners' insistence in demanding that those who allege injury must prove injury, respondents said
that biosafety evidence could not be readily contained in a corpus delicti to be presented in court. Indeed,
the inherent and potential risks and adverse effects brought by GMOs are not like dead bodies or wounds
that are immediately and physically identifiable to an eyewitness and which are resulting from a common
crime. Precisely, this is why the Cartagena Protocol's foundation is on the precautionary principle and
development of sound science and its links, to social and human rights law through its elements of public
awareness, public participation and public right to know. This is also why the case was brought under
the Rules of Procedure for Environmental Cases and not under ordinary or other rules, on the grounds of
violation of the rights of the Filipino people to health, to a balanced and healthful ecology, to information
on matters of national concern, and to participation. The said Rules specifically provides that the
appreciation of evidence in a case like this must be guided by the precautionary principle.

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As to the non-exhaustion of administrative remedies being raised by petitioners as ground to dismiss the
present petition, respondents said that nowhere in the 22 sections of DAO 08-2002 that one can find a
remedy to appeal the decision of the DA issuing the field testing permit. What is only provided for is a
mechanism for applicants of a permit, not stakeholders like farmers, traders and consumers to appeal a
decision by the BPI-DA in case of denial of their application for field testing. Moreover, DAO 08-2002 is
silent on appeal after the issuance of the biosafety permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514 explicitly
states that the application of biosafety regulations shall be made in accordance with existing laws and the
guidelines therein provided. Hence, aside from risk assessment requirement of the biosafety regulations,
pursuant to the PEISS law and Sections 12 and 13 of the Philippine Fisheries Code of 1998, an
environmental impact statement (EIS) is required and an environmental compliance certificate (ECC) is
necessary before such Bt crop field trials can be conducted.

Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental Cases do
not empower courts to adjudicate a controversy that is moot and academic. It points out that respondents
failed to satisfy all the requirements of the exception to the rule on actual controversies. The Biosafety
Permit is valid for only two years, while the purported stages in the commercialization, propagation and
registration of Bt talong still cannot confer jurisdiction on the CA to decide a moot and academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners do not
have "mandatory" and "ministerial" duty to re-examine and reform the biosafety regulatory system, and
to propose curative legislation. The law (EO 514) cited by respondents does not impose such duty on
public petitioners. As for the Cartagena Protocol, it laid down a procedure for the evaluation of the
Protocol itself, not of the Philippine biosafety regulatory system. ISAAA stresses that the CA is without
jurisdiction to review the soundness and wisdom of existing laws, policy and regulations. Indeed, the
questions posed by the respondents are political questions, which must be resolved by the executive and
legislative departments in deference to separation of powers.

On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in saying that
these are limited to appeals. The concerned public may invoke Section 8 (G) of DAO 08-2002 which grants
them the right to submit their written comments on the BPI regarding the field testing permits, or Section
8 (P) for the revocation and cancellation of a field testing permit. Respondents' failure to resort to the
internal mechanisms provided in DAO 08-2002 violates the rule on exhaustion of administrative remedies,
which warrants the dismissal of respondents' petition.

ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for field testing
permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the DA through
the BPI, is responsible for the production of improved planting materials and protection of agricultural
crops from pests and diseases. In bypassing the administrative remedies available, respondents not only
failed to exhaust a less costly and speedier remedy, it also deprived the parties of an opportunity to be
heard by the BPI which has primary jurisdiction and knowledgeable on the issues they sought to raise.

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Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it was not formally offered in evidence and are hearsay.
Majority of those records contain incomplete information and none of them pertain to the Bt talong.
Respondents likewise presented two misleading scientific studies which have already been discredited:
the 2013 study by B.P. Mezzomo, et al. and the study by Prof. Seralini in 2012. Petitioner notes that both
articles have been withdrawn from publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only 126 usable
records out of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A. Manzo, F. Veronesi,
and D. Rosellini, entitled "An overview of the last 10 years of genetically engineered crop safety research."
The authors evaluated 1,783 scientific records of GE crop safety research papers, reviews, relevant
opinions and scientific reports from 2002-2012. Their findings concluded that "the scientific research
conducted so far has not detected any significant hazards directly connected with the use of GE crops." In
the article "Impacts of GM crops on biodiversity," in which scientific findings concluded that "[o]verall, x x
x currently commercialized GM crops have reduced the impacts of agriculture on biodiversity, through
enhanced adoption of conservation tillage practices, reduction of insecticide use and use of more
environmentally benign herbicides and increasing yields to alleviate pressure to convert additional land
into agricultural use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR 24473-A
decade of EU-funded GMO research (2001-2010), concluded from more than 130 research projects,
covering a period of 25 years of research, and involving more than 500 independent research groups, that
"biotechnology, and in particular GMOs, are not per se more risky than e.g. conventional plant breeding
technologies." Another article cited is "Assessment of the health impact of GM plant diets in long-term
and multigenerational animal feeding trials: A literature review" which states that scientific findings show
that GM crops do not suggest any health hazard, and are nutritionally equivalent to their non-GM
counterparts and can be safely used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse environmental effects of GM
crops, petitioner cites the article "Ecological Impacts of Genetically Modified Crops: Ten Years of Field
Research and Commercial Cultivation" which concluded that "[T]he data available so far provide no
scientific evidence that the cultivation of the presently commercialized GM crops has caused
environmental harm." A related article, "A Meta-Analysis of Effects of Bt Cotton and Maize on Non-target
Invertebrates" states that scientific findings show that non-target insects are more abundant in GM crop
fields like Bt cotton and Bt maize fields than in non-GM crops that are sprayed with insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA, which
presented the following comments and criticisms on each of the paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected considering that
this was not formally offered as evidence by respondents. Hence, the same may not be considered by the
Honorable Court. (Section 34, Rule 132 of the Rules of Court; Heirs of Pedro Pasag v. Spouses Parocha,
supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the study
was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation and conclusion of
this study to Bt talong is grossly erroneous and calculated to mislead and deceive the Honorable Court.

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Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-
Fierros, et al., which was published in an article entitled A Review of the Food Safety of Bt Crops, the
authors reported that Adel-Patient, et al. tried and failed to reproduce the results obtained by the study
made by L. Moreno-Fierros, et al. The reason is because of endotoxin contamination in the preparation
of the CrylAc protein. Further, when purified Cry protein was injected to mice through intra-gastric
administration, there was no impact on the immune response of the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing potential
health risks from human consumption of foods derived from Bt crops can be questioned because the
doses tested in mice is irrelevant to human dietary exposure, i.e., the doses given were "far in excess of
potential human intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any weight
and consideration because his sworn statement was not admitted in evidence by the Court of Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the differences observed
by Seralini's statistical analysis as examples of random biological variation that occurs when many
measurements are made on test animals, and which have no biological significance. Hence, there are no
food safety concerns. Further, petitioner ISAAA presented in evidence the findings of regulatory bodies,
particularly the EFSA and the FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ rejected
Seralini's findings because the same were based on questionable statistical procedure employed in maize
in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its earlier
decision approving the safety of Bt eggplant notwithstanding the findings of Seralini's assessment. In
effect, Seralini's findings and interpretation were rejected by the Indian regulatory agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not entitled
to any weight and consideration because the Court of Appeals did not admit their sworn statement.
Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously flawed study, making their
sworn statements equally flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof. David A.
Andow as the work of the National Academy of Sciences of the USA. Such claim is grossly misleading. In
truth, as Prof. David A. Andow indicated in the preface, the report was produced upon the request of
Aruna Rodriguez, a known anti-GM campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the environment of
Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all over
the country. He concluded, however, that the dossier is inadequate for ERA. This is perplexing considering
this is the same gene that has been used in Bt cotton since 1996. Scores of environmental and food safety
risk assessment studies have been conducted and there is wealth of information and experience on its
safety. Various meta-analyses indicate that delaying the use of this already effective Bt brinjal for
managing this devastating pest only ensures the continued use of frequent insecticide sprays with proven
harm to human and animal health and the environment and loss of potential income of resource-poor
small farmers.

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the Indian

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regulatory body, GEAC, has not revised its earlier decision approving the safety of Bt eggplant based on
the recommendation of two expert committees which found the Mahyco regulatory dossier compliant to
the ERA stipulated by the Indian regulatory body. In effect, like Seralini, Andow's findings and
interpretation were also rejected by the Indian regulatory agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002 already takes into consideration any and all significant risks
not only to the environment but also to human health. The requirements under Sections 26 and 27 of
the Local Government Code are also inapplicable because the field testing is not among the six
environmentally sensitive activities mentioned therein; the public consultations and prior local
government unit (LGU) approval, were nevertheless complied with. Moreover, the field testing is an
exercise of academic freedom protected by the Constitution, the possibility of Bt talong's
commercialization in the future is but incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are
inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-serving as it was
conducted by respondents Greenpeace and MASIPAG themselves; the persons who prepared the same
were not presented in court to identify and testify on its findings; and the methods used in the
investigation and research were not scientific. Said studies failed to establish any correlation
between Bt corn and the purported environmental and health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for the same
reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint affidavit of Dr. Kiat
and Dr. Quijano were denied admission by the CA. Given the failure of the respondents to present
scientific evidence to prove the claim of environmental and health damages, respondents are not entitled
to the writ of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the latter
complied with all the requirements under DAO 08-2002, including the conduct of risk assessment. The
applications for field testing of Bt talong thus underwent the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several applications for
issuance of Biosafety Permits to conduct multi-locational field testing of Bt talong. Even before the
proponent submitted its application, petitioner BPI conducted a consultative meeting with the proponent
to enlighten the latter about the requirements set out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of DA AO
No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information as required
in Section 8 (A) (1) of DA AO No. 08.

Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated article
has undergone satisfactory testing under contained conditions in the Philippines, (ii) technical dossier
consisting of scientific literature and other scientific materials relied upon by the applicant showing that Bt
talong will not pose any significant risks to human health and the environment, and (iii) copy of the
proposed PIS for Field Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and

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Third. The applications contained the Endorsement of proposal for field testing, duly approved by the
majority of all the members of the respective Institutional Biosafety Committees (IBC), including at least
one community representative, as required by Section 8 (E) of DA AO No. 08.

a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation of the
risk assessment and risk management strategies of the applicant for field testing using the NCBP
guidelines. The IBC shall determine if the data obtained under contained conditions provide sufficient
basis to authorize the field testing of the regulated article. In making the determination, the IBC shall
ensure that field testing does not pose any significant risks to human health and the environment. The
IBC may, in its discretion, require the proponent to perform additional experiments under contained
conditions before acting on the field testing proposal. The IBC shall either endorse the field testing
proposal to the BPI or reject it for failing the scientific risk assessment.

b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires an applicant
for field testing to establish an IBC in preparation for the field testing of a regulated article and whose
membership has been approved by the BPI. Section 1 (L) of DA AO No. 08, requires that the IBC shall be
composed of at least five (5) members, three (3) of whom shall be designated as "scientist-members" who
shall possess scientific and technological knowledge and expertise sufficient to enable them to evaluate
and monitor properly any work of the applicant relating to the field testing of a regulated article, and the
other members are designated as "community representatives" who are in a position to represent the
interest of the communities where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8 (F) of DA
AO No. 08, forwarded the complete documents to three (3) independent Scientific Technical Review Panel
(STRP) members. Pending receipt of the risk assessment reports of the three STRP members, petitioner
BPI conducted its own risk assessment.

Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the three
STRP members recommending the grant of Biosafety Permits to UPLB after a thorough risk assessment
and evaluation of UPLB's application for field trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each
concerned barangays and city/municipal halls of the localities having jurisdiction over its proposed field
trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative meetings and
public seminars in order to provide public information and in order to give an opportunity to the public to
raise their questions and/or concerns regarding the Bt talong field trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to the Bt
talong field testing considering that its subject matter is not mass production for human consumption.
The project entails only the planting of Bt eggplants and cultivation in a controlled environment; indeed,
the conduct of a field trial is not a guarantee that the Bt talong will be commercialized and allowed for
cultivation in the Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note that during the
period of public consultation under DAO 08-2002, it is BPI which processes written comments on the
application for field testing of a regulated article, and has the authority to approve or disapprove the
application. Also, under Section 8 (P), BPI may revoke a biosafety permit issued on the ground of, among

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others, receipt of new information that the field testing poses significant risks to human health and the
environment. Petitioners assert they were never remiss in the performance of their mandated functions,
as shown by their immediate action with respect to the defective certification of posting of PIS in Kabacan,
North Cotabato. Upon receiving the letter-complaint on January 24, 2012, BPI readily ordered their re-
posting. The same incident occurred in Davao City, where BPI refused to lift the suspension of biosafety
permits until "rectification of the conditions for public consultation is carried out."

To underscore respondents' blatant disregard of the administrative process, petitioners refer to

documented instances when respondents took the law in their own hands. Greenpeace barged into one
of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the entrance gate
through the use of a bolt cutter, and then proceeded to uproot the experimental crops without permission
from BPI or the project proponents. Petitioners submit that the non-observance of the doctrine of
exhaustion of administrative remedies results in lack of cause of action, one of the grounds under
the Rules of Court justifying the dismissal of a complaint.

Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International) as well as
regional (Crop Life Asia) networks of member-companies representing the plant science industry. It aims
to "help improve the productivity of Filipino farmers and contribute to Philippine food security in a
sustainable way." It supports "innovation, research and development in agriculture through the use of
biology, chemistry, biotechnology, plant breeding, other techniques and disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners' right to
due process because it was prevented from cross-examining the respondents' expert witnesses and
conducting re-direct examination of petitioners' own witnesses, and being an evidently partial and
prejudiced court. It said the petition for writ of kalikasan should have been dismissed outright as it
effectively asks the Court to engage in "judicial legislation" to "cure" what respondents feel is an
inadequate regulatory framework for field testing of GMOs in the Philippines. Respondents also violated
the doctrine of exhaustion of administrative remedies, and their petition is barred by estoppel and laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and prove
the particular environmental damage resulting from the Bt talong field testing. It cites the scientific
evidence on record and the internationally accepted scientific standards on GMOs and GMO field testing,
and considering the experience of various countries engaged in testing GMOs, telling us that GMO field
testing will not damage the environment nor harm human health and more likely bring about beneficial
improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which erroneously
equated field testing of Bt talong with Bt talong itself; failed to recognize that in this case, there was no
particular environmental damage identified, much less proven; relied upon the article of Prof. Seralini that
was retracted by the scientific journal which published it; there is no scientific uncertainty on the adverse
effects of GMOs to environment and human health; and did not consider respondents' failure to prove
the insufficiency of the regulatory framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered absolutely safe

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before any field testing may be allowed, would result in permanently placing the Philippines in the
shadows of more developed nations (whose economies rest on emerging markets importing products
from them). It points out that the testing of Bt talong specifically addresses defined problems such as the
need to curb the misuse of chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of

advocates of modern biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:

I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE ABSENCE
OF ANY JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE

PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY PRINCIPLE.

IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF SUSTAINED,

WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-TECHNOLOGY AND,
ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt talong field
trials having been terminated, the CA entertained a prohibited collateral attack on the sufficiency of DAO
08-2002. Though not invalidating the issuance, which the CA knew was highly improper, it nonetheless
granted the petition for writ of kalikasan on the theory that "mere biosafety regulations" were insufficient
to guarantee the safety of the environment and the health of the people.

Also reiterated were those grounds for dismissal already raised by the petitioners: failure to exhaust
administrative remedies and finality of findings of administrative agencies.

BCP further asserts that the application of a stringent "risk assessment" process to regulated articles prior
to any release in the environment for field testing mandated by AO No. 8 sufficiently complies with the
rationale behind the development of the precautionary principle. By implementing the stringent
provisions of DAO 08-2002, in conjunction with the standards set by EO 514 and the NBF, the government
preemptively intervenes and takes precautionary measures prior to the release of any potentially harmful
substance or article into the environment. Thus, any potential damage to the environment is prevented
or negated. Moreover, international instruments ratified and formally adopted by the Philippines (CBD
and the Cartagena Protocol) provide additional support in the proper application of the precautionary
principle in relation to GMOs and the environment.

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On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic premise for
its application is the existence of threat of harm or damage to the environment, which must be backed by
a reasonable scientific basis and not based on mere hypothetical allegation, before the burden of proof is
shifted to the public respondents in a petition for writ of kalikasan. Here, the CA relied heavily on its
observation that "... field trials of bt talong could not be declared ... as safe to human health and to
ecology, with full scientific certainty, being an alteration of an otherwise natural state of affairs in our
ecology" and "introducing a genetically modified plant in our intricate world of plants by humans certainly
appears to be an ecologically imbalancing act," among others. BCP finds that this pronouncement of the
CA constitutes an indictment not only against Bt talong but against all GMOs as well. The appellate court's
opinion is thus highly speculative, sweeping and laced with obvious bias.

There being no credible showing in the record that the conduct of Bt talong field trials entails real threats
and that these threats pertain to serious and irreversible damage to the environment, BCP maintains that
the precautionary principle finds no application in this case. While Rule 20 of the Rules of Procedure for
Environmental Cases states that "[w]hen there is a lack of full scientific certainty in establishing a causal
link between human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it," the CA failed to note that the element of lack of full scientific certainty
pertains merely to the causal link between human activity and environmental effect, and not the
existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against technological
advancements, especially those in agriculture. Affirming the CA decision thus sets a dangerous precedent
where any and all human activity may be enjoined based on unfounded fears of possible damage to health
or the environment.

Issues

From the foregoing submissions, the Court is presented with the following issues for resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative

remedies;

4. Application of the law on environmental impact statement/assessment on projects

involving the introduction and propagation of GMOs in the country;

5. Evidence of damage or threat of damage to human health and the environment in two or
more provinces, as a result of the Bt talong field trials;

6. Neglect or unlawful omission committed by the public respondents in connection with

the processing and evaluation of the applications for Bt talong field testing; and

7. Application of the Precautionary Principle.

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The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question."38 It refers particularly to
"a party's personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result" of the act being challenged, and "calls for more than just a generalized grievance."39

However, the rule on standing is a matter of procedure which can be relaxed for non-traditional plaintiffs
like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching significance to society, or of paramount public
interest.40 The Court thus had invariably adopted a liberal policy on standing to allow ordinary citizens and
civic organizations to prosecute actions before this Court questioning the constitutionality or validity of
laws, acts, rulings or orders of various government agencies or instrumentalities.41

Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits. In said
case, we recognized the "public right" of citizens to "a balanced and healthful ecology which, for the first
time in our nation's constitutional history, is solemnly incorporated in the fundamental law." We held that
such right need not be written in the Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries with it the correlative duty to refrain
from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to
the end that their exploration, development and utilization be equitably accessible to the present as well
as future generations. Needless to say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently,
the minors' assertion of their right to a sound environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for the generations to come.43(Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental Cases which
allows the filing of a citizen suit in environmental cases.44 The provision on citizen suits in the Rules
"collapses the traditional rule on personal and direct interest, on the principle that humans are stewards
of nature," and aims to "further encourage the protection of the environment."45

There is therefore no dispute on the standing of respondents to file before this Court their petition for
writ of kalikasan and writ of continuing mandamus.

Mootness

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It is argued that this case has been mooted by the termination of all field trials on August 10, 2012. In fact,
the validity of all Biosafety permits issued to UPLB expired in June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy because the issues
involved have become academic or dead, or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
parties.46 Time and again, courts have refrained from even expressing an opinion in a case where the
issues have become moot and academic, there being no more justiciable controversy to speak of, so that
a determination thereof would be of no practical use or value.47

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar and the public; and fourth, the case is capable of repetition yet evading review.48 We
find that the presence of the second and fourth exceptions justified the CA in not dismissing the case
despite the termination of Bt talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject field trials, it is not
certain if they have actually completed the field trial stage for the purpose of data gathering. At any rate,
it is on record that the proponents expect to proceed to the next phase of the project, the preparation for
commercial propagation of the Bt eggplants. Biosafety permits will still be issued by the BPI for Bt
talong or other GM crops. Hence, not only does this case fall under the "capable of repetition yet evading
review" exception to the mootness principle, the human and environmental health hazards posed by the
introduction of a genetically modified plant, a very popular staple vegetable among Filipinos, is an issue
of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies

In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and exhaustion of
administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first avail of all
the means afforded him by administrative processes. The issues which administrative agencies are
authorized to decide should not be summarily taken from them and submitted to a court without first
giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction;
that is, courts cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative
tribunal, where the question demands the exercise of sound administrative discretion requiring the
special knowledge, experience and services of the administrative tribunal to determine technical and
intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary
jurisdiction, which are based on sound public policy and practical considerations, are not inflexible
rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the party
invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the

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complainant; (d) where the amount involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the
courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and
irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-
exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy
and adequate remedy; (k) when strong public interest is involved; and, (1) in quo warranto proceedings.
x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after public
information sheets have been posted (Section 7[G]). Section 7(P) also provides for revocation of field
testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the following
grounds:

1. Provision of false information in the Application to Field Test;

2. Violation of SPS or biosafety rules and regulations or of any conditions specified in the
permit;

3. Failure to allow the inspection of the field testing site;

4. Receipt by BPI of new information that the field testing of the regulated article poses
significant risks to human health and the environment;

5. Whether the regulated article was imported, misdeclaration of shipment; or

6. Such other grounds as BPI may deem reasonable to prevent significant risks to human
health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious health
and environmental adverse effects of the Bt talong field trials due to "inherent risks" associated with
genetically modified crops and herbicides. They sought the immediate issuance of a TEPO to enjoin the
processing for field testing and registering Bt talong as herbicidal product in the Philippines, stopping all
pending field trials of Bt talong anywhere in the country, and ordering the uprooting of planted Bt
talong in the field trial sites.

In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of continuing
mandamus commanding the respondents to: (1) comply with the requirement of environmental impact
statement; (2) submit comprehensive risk assessments, field test reports, regulatory compliance reports
and other material documents on Bt talong including issued certifications on public consultation with
LGUs; (3) work with other agencies to submit a draft amendment to biosafety regulations; and (4) BPI, in
coordination with relevant government agencies, conduct balanced nationwide public information on the
nature of Bt talong field trial, and a survey of its social acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the respondents
"to determine the questions of unique national and local importance raised here that pertain to laws and
rules for environmental protection, thus [they were] justified in coming to this Court."50 We take judicial
notice of the fact that genetically modified food is an intensely debated global issue, and despite the entry
of GMO crops (Bt corn) into the Philippines in the last decade, it is only now that such controversy

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involving alleged damage or threat to human health and the environment from GMOs has reached the
courts.

Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to fulfill specific
purposes. The basic strategy employed is to use the sexual mechanism to reorganize the genomes of two
individuals in a new genetic matrix, and select for individuals in the progeny with the desirable
combination of the parental characteristics. Hybridization is the conventional way of creating variation. In
animals, mating is effected by introducing the desired sperm donor to the female at the right time. In
plants, pollen grains from the desired source are deposited on the stigma of a receptive female plant.
Pollination or mating is followed by fertilization and subsequently development into an embryo. The effect
of this action is the reorganization of the genomes of two parents into a new genetic matrix to create new
individuals expressing traits from both parents. The ease of crossing of mating varies from one species to
another. However, conventional breeding technologies are limited by their long duration, need for sexual
compatibility, low selection efficiency, and restricted gene pool.51

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists to
transfer genes from one organism to any other, circumventing the sexual process. For example, a gene
from a bacterium can be transferred to corn. Consequently, DNA technology allowed scientists to treat all
living things as belonging to one giant breeding pool. Unlike other natural genome rearrangements
phenomena, rDNA introduces alien DNA sequences into the genome. Even though crossing of two
sexually compatible individuals produces recombinant progeny, the term recombinant DNA is restricted
to the product of the union of DNA segments of different biological origins. The product of recombinant
DNA manipulation is called a transgenic organism. rDNA is the core technology of biotechnology.52

The organism that is created through genetic engineering is called a genetically modified organism (GMO).
Since the production of the first GMOs in the 1970s, genes have been transferred between animal species,
between plant species, and from animal species to plant species. Some genes can make an animal or plant
grow faster or larger, or both. A gene produced by flounder (anti-freeze) was transplanted into salmon so
that salmon can be farmed in colder climates. Many species offish are genetically engineered to speed
growth, to alter flesh quality, and to increase cold and disease resistance. In farm animals such as cattle,
genes can be inserted to reduce the amount of fat in meat, to increase milk production, and to increase
superior cheese-making proteins in milk. Biotechnology has also modified plants to produce its own
pesticide, resist common diseases or to tolerate weed-killing herbicide sprays.53

Despite these promising innovations, there has been a great deal of controversy over bioengineered
foods. Some scientists believe genetic engineering dangerously tampers with the most fundamental
natural components of life; that genetic engineering is scientifically unsound; and that when scientists
transfer genes into a new organism, the results could be unexpected and dangerous. But no long-term
studies have been done to determine what effects GMO foods might have on human health.54

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the latest
molecular biology techniques. These plants are modified in the laboratory to enhance desired traits such
as increased resistance to herbicides or improved nutritional content.55 Genetic modification of plants
occurs in several stages:

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 1. An organism that has the desired characteristic is identified and the specific gene
producing this characteristic is located and the DNA is cut off.

2. The gene is then attached to a carrier in order to introduce the gene into the cells of the
plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.

3. Along with the gene and carrier a 'promoter' is also added to ensure that the gene works
adequately when it is introduced into the plant.

4. The gene of interest together with carrier and promoter is then inserted into bacterium,
and is allowed to reproduce to create many copies of the gene which are then transferred
into the plant being modified.

5. The plants are examined to ensure that they have the desired physical characteristic
conferred by the new gene.

6. The genetically modified plants are bred with conventional plants of the same variety to
produce seed for further testing and possibly for future commercial use. The entire
process from the initial gene selection to commercial production can take up to ten years
or more.56

Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the major constraints
being faced in farming such as insect pest infestation and diseases which lead to substantial yield losses.
Pest-resistant crops could substantially improve yields in developing countries where pest damage is
rampant and reduce the use of chemical pesticides. Crop plants which have been genetically engineered
to withstand the application of powerful herbicides57 using genes from soil bacteria eliminates the time-
consuming and not cost-effective physical removal of weeds by tilling. The herbicides to which the GM
crops are tolerant are "broad spectrum" weedkillers, which means they can be sprayed over the entire
field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes providing
tolerance to the herbicides (glyphosate or glufosinate ammonium). These herbicides kill nearly all kinds
of plants except those that have the tolerance gene. Another important benefit is that this class of
herbicides breaks down quickly in the soil, eliminating residue carryover problems and reducing adverse
environmental impacts.58

Some plants are genetically engineered to withstand cold climates such as GM strawberries or soybeans,
expressing the anti-freeze gene of arctic flounder, to protect themselves against the damaging effects of
the frost; and GM tobacco and potato with anti-freeze gene from cold water fish. Crops could also be
genetically modified to produce micronutrients vital to the human diet such as the "golden rice"
genetically modified to produce beta-carotene, which can solve Vitamin A deficiency and prevent night
blindness in pre-school children. Other efforts to enhance nutritional content of plants include the genetic
modification of canola to enhance Vitamin E content or better balance fatty acids, cereals for specific
starch or protein, rice for increased iron to reduce anemia, and plant oils to adjust cholesterol levels. There
are also food crops engineered to produce edible vaccines against infectious diseases that would make
vaccination more readily available to children around the world. For example, transgenic bananas
containing inactivated viruses protecting against common developing world diseases such as cholera,
hepatitis B and diarrhea, have been produced. These vaccines will be much easier to ship, store and

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administer than traditional injectable vaccines.59

Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of the often
opposing goals of meeting the human demand for food, nutrition, fiber, timber, and other natural
resources. Biotech crops could put more food on the table per unit of land and water used in agriculture,
thus resulting in decreased land and water diverted to human uses. Increasing crop yields and reducing
the amount of cultivated land necessary would also reduce the area subject to soil erosion from
agricultural practices, which in turn would limit associated environmental effects on water bodies and
aquatic species and would reduce loss of carbon sinks and stores into the atmosphere.60

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment, there emerged
controversial issues concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health effects. Based on
scientific studies, these foods can unleash new pathogens, contain allergens and toxins, and increase the
risk of cancer, herbicide exposure, and harm to fetuses and infants.61 Independent studies conducted
went as far to conclude that GM food and feed are "inherently hazardous to health."62

A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase the
methionine content for animal feed. The protein was subsequently shown to be an allergen and the
product was never marketed. Genetically modified foods can introduce novel proteins into the food
supply from organisms that are never consumed as foods, which may pose a health risk. This may elicit
potentially harmful immunological responses, including allergic hypersensitivity.63

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes genetically altered
to produce lectins, natural insecticides, to protect them against aphids, damaged the animals' gut, other
organs, and immune system. Dr. Pusztai found that "the damage originated not from the transgene and
its expressed product but from the damage caused by the insertion of the transgene, probably due to
insertional mutagenesis."64 If confirmed, Pusztai's conclusions will reinforce concerns that gene insertion
itself may create new toxins; it will also implicate the toxin commonly used in other genetically engineered
crops - the Bt toxin which, Pusztai says, is also a lectin.65

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps determine
if the foreign gene has successfully spliced into the host organism, is another cause of grave concern
among scientists. These arm genes might unexpectedly recombine with disease-causing bacteria or
microbes in the environment or in the guts of animals or humans who eat GM food, thus contributing to
the growing public health danger of antibiotic-resistance of infections that cannot be cured with
traditional antibiotics (e.g., new strains of salmonella, e-coli, campylobacter and enterococci).66However,
recent advances in genetic engineering indicate that use of such selection markers is likely to diminish
with the anticipated development of alternative types of marker genes.67

Increased cancer risk is another critical issue in the consumption of GM foods. A growth hormone
genetically modified to stimulate milk production in cows was found to elevate levels of IGF-1 (insulin-like
Growth Factor-1, identical versions of which occurs in cows and humans) in cow's milk by 80%. IGF-1 is
reported to be a key factor in prostate cancer, breast cancer and lung cancer.68 Dr. Samuel Epstein of the
University of Illinois warned of the danger of high levels of IGF-1 contained in milk cows injected with

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synthetic bovine growth hormone (rBGH), which could be a potential risk factor for breast and
gastrointestinal cancers.69

Glyphosate, the active ingredient in Monsanto's Roundup® herbicide, has been found to worsen modern
diseases. A report published in the journal Entropy argues that glyphosate residues, found in most
commonly consumed foods in the Western diet courtesy of genetically engineered sugar, corn, soy and
wheat, "enhance the damaging effects of other food-borne chemical residues and toxins in the
environment to disrupt normal body functions and induce disease." Another research demonstrated a
connection between increased use of Roundup with rising autism rates in the US.70

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating non-GMO plants,
creating super weeds and super pests, harming non-target species, changing soil microbial and
biochemical properties, and threatening biodiversity.

There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide tolerance
(HT). Both have drastic modes of action to kill the target species at high efficiency. Bt crops contain a toxin
lethal to certain insects, and Bt sprays have been used by organic farmers as a last option to deal with
certain pests like the corn borer. It is feared that genetically modified Bt crops will speed up resistance
to Bt, thereby rendering the organic spray ineffective.71 Lab and field tests also indicate that common
plant pests such as cotton bollworms, living under constant pressure from GE crops, will soon evolve into
"superpests" completely immune to Bt sprays and other environmentally sustainable biopesticides.72 In
the case of HT, the technology involves the combined use of a chemical herbicide and a GM plant. The
herbicide is generally a broad spectrum herbicide (commonly glyphosate or glufosinate) which kills weeds
while leaving the crop plant alive as it is genetically engineered to be resistant to the herbicide. The
herbicide acts to inhibit an essential enzyme that is found in all plants and as a result is able to eliminate
all weeds whereas most conventional herbicides are selective in their action and target a limited number
of weeds. Concern has been raised regarding over-reliance on use of one or two herbicides in increased
amounts over time which leads to the emergence of herbicide resistant weeds. Also, the transfer of an
herbicide-resistance gene into a weed can convert it into a superweed. Pests and weeds will emerge that
are pesticide or herbicide resistant, which means that stronger, more toxic chemicals will be needed to
get rid of the pests.73

It is a well-accepted fact that genetically engineered plants can move beyond the field sites and cross with
wild relatives.74 It is by nature a design of plants to cross pollinate to spread genes further afield. Maize,
oil seed rape, sugar beet, barley, among others, are wind and insect pollinated, allowing pollen to travel
large distances. In GM crop fields, pollen drift and insect pollination create obvious problems for nearby
non-GM or organic crops.75 GM maize could cross-pollinate neighboring non-GM or organic maize crops.
Maize pollen can travel at least 500-700 meters and still be viable and distances of several kilometers have
even been reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop species that are
outcrossers, many environmental factors influence the maximum pollination distance such as the size of
pollen grains, the humidity in the air, and the wind speed.77Brinjal is usually self-pollinated, but the extent
of cross-pollination has been reported as high as 48% and hence it is classified as cross-pollinated crop.
The cone-like formation of anthers favors self-pollination; but since the stigma ultimately projects beyond
the anthers, there is an ample opportunity for cross-pollination. The rates of natural cross-pollination may
vary depending on genotype, location, and insect activity. The extent of outcrossing has been reported

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from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at Asian Vegetable Research Development
Centre; however the Indian researchers have reported 2 to 48% outcrossing in brinjal varieties in India.
Outcrossing primarily takes place with the help of insects.78

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically modified
yellow corn which contains the pesticide Bt in every cell, was found in white corn tortilla chips in Florida,
USA. Starlink had been approved for animal feed but not for human consumption due to concerns about
dangerous allergic reactions. The Starlink incident is often cited to illustrate how difficult it is to keep
genetically modified crops from spreading.79

This gene flow to wild species is particularly alarming to environmentalists. The wild species from which
our agricultural plants originate are an important genetic resource for further plant breeding if, for
example, there is a requirement for improved resistance to climate change or plant pests. Future plant
breeding could be jeopardized if transgenes spread into these resources. Similarly, agriculture in the
centers of origin could be permanently damaged if transgenes spread into regional landraces.80 Invasive
species can replace a single species or a whole range of species, and they can also change the conditions
within ecological systems. Crossing can cause losses in the genetic information of the original species, a
reduction in genetic diversity and an ongoing incremental change of genetic identity in the original plants.
It is hard to predict which species will become invasive.81 Indeed, GM crops could threaten the centers of
crop biodiversity or outgrow a local flora to the detriment of native species.82

Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees. Concern has
been expressed about the potential toxicity of the Bt toxin in corn pollen to the monarch butterfly because
initial laboratory studies showed increased mortality in larvae. However, in another study it was believed
that it is unlikely that a significant risk to those butterflies exists.83

On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and their effects
on microbial properties and enzyme activities. Results showed that there was persistence of said proteins
in soil under 4-year consecutive cultivation of transgenic cottons. Soil microbial biomass carbon, microbial
activities, and soil enzyme activities (except urease and phosphodiesterase) significantly decreased in soil
under transgenic cottons.84

In another review, it was stated that the direct effects of the plant that has been modified is of the most
concern since the introduction of transgenic proteins for pest and disease resistance can involve the
production of chemical substances that are potentially toxic to non-target soil organisms, including
mycorrhizal fungi and soil microfauna that are involved in organic matter decomposition. Experimental
studies have shown that the transgenic proteins Bt crystal toxin and T4 lysozyme, though used to prevent
insect damage to the above ground plant parts, are not only present in root exudates but that they
maintain biological activity after entering the soil.85

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which include
compaction and resultant runoff, the killing of beneficial microbes and bacteria, and the exhaustion of
necessary minerals and nutrients that plants require. It was found that glyphosate "locks up" manganese
and other minerals in the soil so that they can't be utilized by the plants that need them, and that it is
toxic to rhizobia, the bacterium that fixes nitrogen in the soil. There is likewise evidence showing that
glyphosates can make their way to groundwater supplies.86 In a study which tested the effects of the
herbicide Roundup on six species of larval amphibians from North America, it was demonstrated that

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when we "use realistic exposure times and the frequently occurring stress of predators found in natural
ecologic communities, one of our most widely applied herbicides (Roundup) has the potential to kill many
species of amphibians." At the same time, the study noted that Monsanto Corporation has recently
released "an additional formulation of glyphosate (Roundup Biactive), which contains a different (but
unspecified) surfactant that is reported to be less toxic."87

Evidence of Damage or Threat of Damage to Human Health and the Environment

Both petitioners and respondents submitted documentary evidence consisting of reports of scientific
studies and articles in support of their respective positions on the benefits and risks of GM plants.

Further, the parties presented their respective expert witnesses who testified on the allegations raised in
the petition concerning damage or threat of damage to human health and the environment resulting from
the conduct of Bt talong field trials in the Philippines. The CA conducted "hot tubbing," the colloquial term
for concurrent expert evidence, a method used for giving evidence in civil cases in Australia. In a "hot tub"
hearing, the judge can hear all the experts discussing the same issue at the same time to explain each of
their points in a discussion with a professional colleague. The objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-examination and increased emphasis on professional dialogue,
and swifter identification of the critical areas of disagreement between the experts.88

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the chairman
and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and Dr. Malayang were
presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and Dr. Cariño appeared for the
respondents.

The following are summaries of the expert witnesses' judicial affidavits:

For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving as senior
science advisor on agricultural biotechnology in the US Department of State, and editor for plant
physiology for McGraw-Hill Encyclopedia of Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered any verifiable report
of a field trial of any GM crop that caused damage to the environment and to human health. This involves
more than 25,000 field trials in 20 years with crops such as Bt eggplant, Bt cotton, Bt corn, and others.
The same applies to the commercial cultivation of Bt crops, which have been grown in ever increasing
quantities worldwide for 16 years and now comprise the majority of the world acreage of maize and
cotton.

A recent European Union (EU) report which concludes that more than 130 EU research projects covering
a period of more than 25 years of research involving more than 500 independent research groups, show
that consuming foods containing ingredients derived from GM crops is no riskier than consuming the same
foods containing ingredients from conventional crops. The World Health Organization (WHO), American
Medical Association, US National Academy of Sciences, European Food Safety Authority (EFSA) all have
come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of poorly
done studies purportedly claiming negative effects, should be viewed with great caution and have been

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highly criticized for their veracity by the overwhelming majority of highly respected scientists. Many
hundreds of studies show no harmful effects. To date, not a single rigorous study of GM foods in animals
has revealed any adverse effect; not a single case of allergy, illness, cancer, or death have been shown to
be associated with foods derived from GM crops, despite the fact that they have been consumed by
Americans for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those
where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China results in an increase
in insect diversity and abundance and a decrease in crop damaging insects not only in Bt crop fields but
also in surrounding non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides, improve food security
worldwide, protect against devastating crop losses and famine, improve nutrition, and some GM crop
techniques help combat climate change.89

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in Agronomy (Plant
Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science Research Specialist, Research
Director at UPLB, UP Diliman, De La Salle University, Forest Research Institute now Ecosystems Research
and Development Bureau of DENR and the Biotechnology Coalition of the Philippines.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is also
in Bt eggplant has been found safe by many food and environmental safety regulatory agencies such as
those in Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa, Japan
and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were
for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials have been reported.
No report of adverse effects of Bt crop field trial exists. All claims of adverse health and environmental
effects of Bt crops has not been scientifically validated. The yearly expansion of GM crop areas in both the
developing and industrialized countries is an attestation of the preference of farmers and the economic
benefits that accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have reduced the
adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly reduced the use of
pesticides, and also increased farmer incomes.90

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology (Insect
Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and biotechnology, Osaka
University, Japan, and Intellectual Property Management and Technology Transfer, ISAAA AmeriCenter,
Cornell University, USA. Director, and Research Associate Professor, National Institute of Molecular
Biology and Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety Systems;
former Executive Director, Philippine Council for Industry, Energy and Emerging Technology Research and
Development, DOST; former Chair, Biosafety Committee, DOST; and was a Member of the Institutional
Biosafety Committees of UPLB and International Rice Research Institute (IRRI); and was extensively
involved in the isolation, bioassay or efficacy testing and development of Bt as microbial insecticides for
the control of Asian corn borer and mosquito larvae at BIOTECH.

The contained field trial experiments, among others, were designed to address concerns on cross-

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pollination or horizontal gene transfer, pollination distances, harm to beneficial organisms, and
development of insect resistance. To prevent cross-pollination, an isolation distance of 200 meters from
other areas where eggplants are grown or wild relatives are present, was observed, and with five (5) rows
of non-transgenic eggplants that serve as pollen trap plants. As to the flight distance of honeybees
reaching 4 kilometers, what was not mentioned is the viability of pollen after it was shed and travelled at
a certain distance. Numerous literatures have shown that isolation distances much less than 200 meters
is sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008) noted that
cross-pollination at a distance of 50 meters was nonexistent; and the Asian Vegetable Research and
Development Center (AVRDC) indicated that eggplants produce perfect flowers which may be cross-
pollinated but self-pollination is more common, the extent of natural crossing depends upon insect
activity and this can be avoided by isolating each variety by 20 meters or with another tall flowering plant.
The isolation distance imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200 meters
distance was found sufficient for pure seed production in India (the same recommendation by Chen [2001]
of AVRDC foundation for seed production purity standards); field studies in 2 locations in India have shown
that at a distance beyond 30 meters no more outcrossing could be detected. Taking all these data into
account, the 48% outcrossing being raised by petitioners is most likely for adjacent plants and therefore
not a valid argument for the on-going field trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of insect
pests because it is toxic only to caterpillars or insects belonging to Order Lepidoptera (butterfly and
moths). The selective toxicity of Bt protein in Bt talong is partly due to the fact that the gut physiology of
these insects is very different from caterpillars, and not all caterpillars are affected by it. There is a
significant number of literature on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location field trials for Bt
talong because of low selection pressure and limited exposure of the insect pest to Bt talong. Insect
resistance is not unique to GM crops as it is a commonly observed biological reaction of insect pests to
control measures like insecticides. In the event Bt talong is approved for commercialization and will be
widely used by fanners, this concern could be addressed by insect resistance management (IRM); an IRM
strategy should be required prior to the commercial release of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be allowed to proceed
so that scientists and researchers will be able to generate valuable data and information which will be
helpful in making informed decisions regarding the usefulness of the technology.91

For Respondents

DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley; M.A.
Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio University; AB
Philosophy, UP Diliman; former Undersecretary of Environment and Natural Resources; served as
Environmental Science representative in the National Biosafety Committee of the Philippines and
participated in the drafting of the Philippines Biosafety Framework; and student, lecturer and advocate of
biodiversity, food security, biosafety and environmental policy.

He is concerned with how GMOs are being introduced for commercial-scale use (as against being used for
academic research) in the Philippines on the following grounds: (a) how they might contaminate the
indigenous genetic resources of the country; (b) how they may cause an imbalance of predator-prey
relationships in ecosystems, so that certain species might dominate ecological niches and erode their

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biodiversity and ecological stability; (c) how they may erode the ability of farmers to control their genetic
resources to sustain their cropping systems; and (d) how much are present biosafety protocols able to
safeguard the long-term ecological and economic interests of the Philippines as a particularly biodiversity-
rich country and which is, therefore, highly sensitive to genetic pollution; to the extent that its biodiversity
is its long-term equity to advances in biotechnology, the most robust measures must be taken so that
such resources will not be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted using a 3-
stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a set of standards
for determining the level of robustness of biosafety measures and protocols that would be acceptable in
the particular case of the Philippines; include required scoping and internal and external validity
requirements of impact and safety assessments; Stage 2 - Using the criteria produced in Stage 1, develop
biosafety measures and protocols to be adopted in the Philippines; and Stage 3 - Apply the protocol with
the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and sectors in the country; biosafety must
be based on an enactment of Congress and open to challenge and adjudication against international laws;
provisions must be made to make it a crime against humanity to recklessly erode and weaken genetic
resources of our people.92

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant
Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person in more
than a hundred trainings and seminars, both local and abroad; served as member in international
agricultural assessment sponsored by Food and Agriculture Organization (FAO), United Nations
Environment Program (UNEP), WHO, and the World Bank; worked on a project for development of
resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and served as researcher and
later Associate Professor of Environmental Management of the UP Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the following risks or
hazards: (a) While natural Bt sprays used in organic farming have little effect on non-target organisms
because the bacterial 'pro-toxin' is in an inactive state and only becomes toxic when processed and
reduced in the gut of certain (targeted) species of insect larvae, in contrast, Bt plants contain an artificial,
truncated Bt gene and less processing is required to generate the toxin because the toxin is already in its
active form. It is therefore less selective, and may harm non-target insects that do not have the enzymes
to process the pro-toxin, as well as the pests for which it is intended; (b) Bt proteins from natural Bt sprays
degrade relatively quickly in the field as a result of ultraviolet light and lose most toxic activity within
several days to two weeks after application. In Bt crops, however, the Bt toxin is produced by the internal
system of the plants thus non-degradable by mere exposure to sunlight and generated throughout the
entire lifespan of the plant; (c) Bt talong can also affect the environment by harming important or
beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like other Bt crops, could be
harmful to non-target organisms if they consume the toxin directly in pollen or plant debris. This could
cause harm to ecosystems by reducing the numbers of important species, or reducing the numbers of
beneficial organisms that would naturally help control the pest species; (c) The evolution of resistance
to Bt crops is a real risk and is treated as such in ecological science throughout the world. If enough
individuals become resistant then the pest control fails; the pest becomes abundant and affects crop yield.
Granting the pest control practice is successful, it may also simply swap one pest for another, a
phenomenon known as secondary pest outbreak. Several studies have shown that other pest insects are

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filling the void left by the absence of the one (or very few) insect pests that Bt crops target, and this is
now the problem with Bt maize.

Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt
talong will eventually lead to contamination of non-genetically modified eggplant varieties. Insects,
particularly honeybees, can fly as far as 4 kilometers and therefore the 200 meters perimeter pollen trap
area in the confined field testing set by BPI is not sufficient. And once contamination occurs, genetic
cleanup of eggplant or any other plant is impossible. Moreover, intra-specific gene flow from Bt talong to
other varieties and populations of eggplants should be examined, as cultivated eggplant (Solanum
melongena) can cross breed with feral populations of S. melongena, and it is possible that cultivated
varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing
between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative species needs
to be evaluated carefully and the consequences of any hybridization that occurs needs to be evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his decision for
moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the reasons why
the release of Bt Brinjal was not allowed. Dr. Andow of the University of Minnesota also published an 84-
pages report on the Environmental Risk Assessment of Bt Brinjal, and among his conclusions is that several
environmental risks were not considered and nearly all the risk assessment done were inadequate. He
concluded that until the risks were understood or managed, there seems to be little reason to approve Bt
Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University; Molecular
Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory in the Council of
Scientific and Industrial Research - Indian Institute of Chemical Biology (CSIR-IICB); Member, Governing
Body and Executive Committee of the state council of Biotechnology, Government of West Bengal and
Chairman of the Biotechnology group of the state council of Science and Technology, Government of West
Bengal; Visiting Professor of the National Institute of Science, Technology and Development (CSIR-
NISTAD); citizen of India and resident of Kolkata, India.

GMO is a classic example of "paradoxes of consequences", where human actions have unintended
consequences, which are in direct opposition to what was intended. The difference in controlled
laboratory condition and standards, and real life open field level micro and macro-environment pushes
the advantage towards the target and non-target living system, with time. The pest resistance to Bt toxin
and development of herbicide tolerance (HT) in weeds is just a matter of time. The decade long experience
in Bt and Ht genes amply proves this point. If we ignore this now - we are manufacturing a global
environmental disaster - which will be a crime against humanity. There is no way to recall these GMO
from the environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will help
the monopoly agribusiness and the expenses of monopolistic competition or cooperative organic farming.
Hot climate and rich biodiversity is detrimental towards the effectiveness of Bt constructs, and helpful
towards unintended gene flow. Moreover, the genetic manipulation is no way fail safe or exact. Shotgun
techniques are being adapted, aided by focused laboratory based screen of traits - rather than the host
or the full natural product. The GM labeling is avoided to cover up this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness. Before
going ahead with spread of this technology, even in a batter form, the foremost task is to establish

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rigorous test and assessment procedures. There are excellent available tools of preteomics,
transcriptomics, and metabolomics for detailed compositional analysis in our hand to do this. Please ask,
why they are not being employed? In fact, there is not a single centre to test GM products on behalf of
the corporate GM Agribusiness house. Thus, low level, long term toxicity of GM foods are yet to be tested.
I believe the time has come to establish a standardization facility to carry out such test facility in any
country before giving permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:
Dr. Cariño:chanRoblesvirtualLawlibrary

x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is not supposed
to be consumed at the moment still under field trial, so it is not supposed to be eaten at the moment. It
has not been released for food nor for feed and so in the context of a confined field test, it has supposed
to have it out in the field in a very controlled manner and any produce that comes out from that area is
supposed to be destroyed or kept from further safety and analysis only.

Chairperson:chanRoblesvirtualLawlibrary

So, actually, there is no full scientific certainty that it does not cause any harm pertaining to health?

Dr. Cariño:chanRoblesvirtualLawlibrary

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting of
the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been actually published on
relative safety of CrylAcc protein and it is actually considered as an additional protein and the various
reviews can be seen in the OECD Digest of risk assessments on CrylAcc protein. Alternatively, if you are
looking at the possibility of harm coming from the introduced protein as yet, we have not done a full blown
assessment of it as of the moment. But we look at the protein sequence and with a comparison of its
sequence with other sequences in the data basis to see if it is similar to this amino acid sequence of other
known toxins and, so far, I have actually ... in my affidavit, I have actually seen personally that it is not
closely related to any of the known toxins that are found into its system.

Chairperson:chanRoblesvirtualLawlibrary

So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?

Dr. Cariño:chanRoblesvirtualLawlibrary

Right now it is not meant to be consumed by human at this point. Let me just clarify one point. When any
GM material is supposed to be introduced for food and for feed and before it is actually utilized for life
skill production, it goes through several steps. The first step is actually the "lab", laboratory work and it is
actually tested in this clean-houses, rolled-out confined limited field test and then it goes to butyl abyss of
field tests where it is like generating more and more informations. We are still early on in this pathway,
so we are only in the confined field test and, at the moment, the thing is that it is still being tested. The
focus is on its efficacy after doing a preliminary assessment of the possible pathological and ecological
effect, and that is the pathway that has been recommended by so many academics as well as scientific
institutions as well. And, that has been a tract followed by almost all the genetically modified crops that
is being introduced in the market today, but at the moment BT Talong is not yet a commodity. It is not yet

382
being evaluated as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

So, no one in this country has yet eaten this BT Talong?

Dr. Cariño:chanRoblesvirtualLawlibrary

No, it has not been eaten, as far as I know. Even in India it has not been consumed by human beings
because it has not been introduced as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of course?

Dr. Cariño:chanRoblesvirtualLawlibrary

If it passes the safety assessments. That there is always a peak condition that, if it would not to be
evaluated in a step of the way much like to evaluate any new product that is coming into the market
evaluation, goes on a step-by-step and at least day-to-day basis.

Dr. Davies:chanRoblesvirtualLawlibrary

Your Honor, may I interject, may I suggest with your permission? I would just like to make a little bit of
explanation.

Chairperson:chanRoblesvirtualLawlibrary

Proceed.

Dr. Davies:chanRoblesvirtualLawlibrary

I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I think of
the name BT toxin is very fortunate. It is really a protein. A protein is an essential constituent of life. It is
an essential constituent of our food. In the human body, and in the body of other animals, this protein is
under the same as any other protein in food. It has no effect on the human body. This has been shown for
many, many years, knowing BT Talong but BT has been a constituent of "maize" in commercial production
for 16 years.

x x x x

Dr. Davies:chanRoblesvirtualLawlibrary

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans in corn
products and by any other people who in[g]est American maize corn products x x x. There is not a single
case of illness or toxicity or allergenicity that can be or that has been associated with this protein and,
therefore, any food containing this protein has been declared by authorities in all the countries that was
mentioned by my colleagues, including the European Union and the United States x x x to be as safe as

383
any food derived from the same plant species not containing this gene. I hope that explains a little bit
about what it is.

Chairperson:chanRoblesvirtualLawlibrary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that Monsanto's
genetically modified corn is linked to cancer?

Dr. Davies:chanRoblesvirtualLawlibrary

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric Seralini? I think
this is one of the publications by Seralini's group. Dr. Seralini's work has been refuted by International
committees of scientists...

x x x x

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake venoms. They
are poisons, so whether it is protein or not that is not the question. So proteins obviously venoms and
proteins and enzymes and they are poisons so protein can be a poison so that is now the point at all to be
considered. The second thing is, yeah, low level toxins long term in[g]estion of this BT toxin in human or
in any other animal have not been tested. So that is true so we do not know direct consumption of this,
because notice have been turned down, that is the objective fact. The third point is about the "American
Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled, how do you know that?
What is its effect? What is its toxicity? And, obviously, there are more than a hundred of papers showing
and published in very good journals. I can give many references which have shown the detrimental effect
of BT Toxin.

x x x x

Chairperson:chanRoblesvirtualLawlibrary

But before having this BT talong scheduled and allowed for field testing, is it not proper that it should be
first determined whether this food product is really safe for eating or not?

Dr. Cariño:chanRoblesvirtualLawlibrary

There is an initial assessment that is generally done and according to the Codex Alimentarius of the WHO,
the thing that you do at this early stage of development is to compare the sequence of the protein that is
being introduced with published sequence of allergens, as well as toxicants and toxins. So that has been
done. Then you have to look for instability under heat conditions because there is seldom do we heat
grow eggplants, so is it stable under heating. Is it stable in the presence of digestive juices? And, if the
answer is "yes", there is at least fair certainty, a fair assurance that it is likely to be safe but then you start
thinking of what other component not present in the product, does this. For example, any product that
we consume today has something that is bad for you, otherwise, you will not see it right now. Otherwise
all the different herbivores will be eating it up, right? It will be extinct if it does not have anything to
protect itself and, so, the thing is one, to quantify how much of that has changed when you lead the

384
genetic modification. So "Talong" has been known to have Solanine and glycoalkaloids whose level well
have to quantify. We have not done that yet. They have not submitted the data for that and this as
secondary metabolize whose relative concentration will change depending on the environment to which
you actually place the system.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You known
that BT Cotton was introduced in India through the back door black market entry. During the field trial,
some of those seeds were taken out and given to the farmers for commercial cultivation to black market.
Monsanto goes well, Monsanto's BT Cotton, like Monsanto, did not sue now apparently sue the company
and they compelled the government that farmers wanted those things and there was high ... how they
pressurized the government. Now, in case of BT cotton is one thing, but BT Eggplant is completely a
different thing. That is why [the] Supreme Court in India has taken a very strong stand and, now, the
parliamentary committee in India. The Supreme Court has also taken steps stand with the field trial. The
first thing in field trial we had to see that whether there is a definite need of this kind of intervention,
because the eggplant is a very common vegetable in this part of the world. There are so many hundreds
of varieties here, these are the origins of these varieties of this kind of vegetable. It is cheap. It is available
everyday. So why you go on changing if there is no crisis in cultivating the eggplants at present. Therefore,
when you give it to this patented seeds technology, its prices will increase, lot of restrictions had to be
deal. So, who will consume this high price eggplant. Many will be exported, that was why the proponents
are looking into it. But, basically, that is the thing that in case of BT Brinjal, neighbor partisan is being
given. There is a moratorium in India from the Supreme Court and from the government side on field trial
of BT Brinjal. Now, if x x x the BT Eggplant is being taken to the Philippines, we guess, to get in as a bypass,
and who will guarantee that it will not go to the farmers?

x x x x

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect of the
planting .... of the existence of the genetically modified organism, for example, on insects, on the soil, on
the air? And then I was thinking, does this have this particular protein that result[s] due to the genetic
modification? Is it ... how is it expelled, for example how does it go into the environment? Or, on the other
hand, how does it go inside and out of human system so that does it disintegrate or is it just there forever?
I am very curious, sir. You have to educate me.

Dr. Davies:chanRoblesvirtualLawlibrary

x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein produced by
each cell will be this BT protein. It does not get into the environment in general. A very small amount
might be in the pollen or in the leaves that fall to the ground but it has been shown to be broken down in
the soil by organisms so it will not exist in the environment. The only way that it is going to get into animals
or insects is if they eat the fruit and this is what an insect that the "talong" fruit and shoot borer will be
trying to. But, if it eats it, it reacts with its intestine so that they become toxic to the caterpillar but this is
very specific to the digestive system of the caterpillar. It does not affect bees. It does not affect animals.
It does not affect humans.

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x x x x

Dr. Davies:chanRoblesvirtualLawlibrary

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific receptors of
the cells of the walls of the insect gut. But, this is very specific to the gut of these insects namely the
"Lepidoptera" and some "coleoptera" which are the butterflies and the beetles but it will only affect if
they try to eat the plant. Now, you are asking us if what is the effect on the environment. x x x I would like
to cite x x x a recent paper published in the journal "Nature" x x x the most prestigious scientific journal in
the world, x x x published in "Nature" in June this year and this is the result of a study of "insects"
in BT Cotton fields in China in 17 locations for 14 years of a long period study. And these scientists revolt
that they show a marked increase in the abundance of three types of generalist arthropod predators
(ladywings, lacewings and spiders) and a decrease in abundance of aphid pests associated with
widespread adoption of Bt cotton. And they are referring to China and they conclude that such crops, x x
x BT crops, can promote beneficial control services in agricultural landscapes. And, it also showed that
these effects extend beyond the field. So, essentially x x x they found that there were more insects than
in conventionally grown cotton and the insect diversity was greater surrounded than being detrimental
to an agriculture ecosystem such BT cotton falls beneficial.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another news
article, "Battlefield". One stream ecologist in United States itself, in a university, she has studied the effect
of growing BT Corn in the field and what is the effect on the stream ecology, the west water, what is
happening to other insects, insects in which it is getting that BT toxin will not go. Yes, she has found
that stream ecology...

x x x x

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in Illinois
published that paper, published that article in PNAS or Proceedings of the National Academy of Sciences,
a prestigious journal? Now, they have to desert her. She was abused, so her file was taken out. So people
started e-mailing, threatening her. So "Nature" has to publish that. How dirty the field has become so they
entitled it "Battelfield." If anybody produces any evidence that BT Toxin or GM Technology is doing any
harm to the environment then it will be battered by the entire English lobby so there is worst the situation.
But National Academy of Sciences in United States has taken a strong decision and, in last year, there were
six publications that published where strong evidences are being produced about the environmental and
ecological damage cause[d] by this technology. So, that is the case.

Dr. Davies:chanRoblesvirtualLawlibrary

Can I respond to that, your Honors?

Dr. Malayang:chanRoblesvirtualLawlibrary

I think Filipinos should be able to talk also here.

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Chairperson:chanRoblesvirtualLawlibrary

Can we give a chance to Dr. Malayang?

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x My concern is on the process and participants in vetting the safety of GM crops, not necessarily the
intricacies of the science involved in genetic modification per se which, I think our international friends,
would like to focus on. x x x

One, I am concerned with the fallibility of technology, x x x even if it is much founded on or produced from
the most robust sciences, a technology could fail to be as useful as it was intended or its use lead to an
[unintended harm to humans and the environment. This is so because science, by nature, as many
scientists will agree, is very probabilistic rather than absolutist. Many cases of common knowledge
illustrate this point. May I just refer, for the Court's notice for, First, the Nuclear Power Plants in Japan x x
x. The best science and the best technology did not necessarily translate to absolute safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced production
ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a plant to take
advantage of a large pesticide market in India to help the country's farmers led to a massive and deadly
safety failure.

The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic chemicals
for fertilizer and pesticides that were [at] the time hailed as wonder technologies. Many scientists in the
world at that time argued for their wider use but they later turned out to harm people, soils and water.
They prove good then bad, so bad that scientists today are using their ill effects as justification for
adopting alternative technologies to get us out of the synthetic chemical regime in agriculture.

And finally, the most common example would be the unintended effects of medicine. x x x Medicines are
technologies intended to do good but, with even the best science and the vetting processes using rigid
safety and risk assessment methods, they still could cause side effects entirely undesired and many of
which can cause chronic or acute threats to human life. This includes the use of "DDT" that was used to
control lice among soldiers after the II World War which, after all, proved to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as the place and context,
the particular place and context of the introduction of BT crops like BT talong. x x x the Philippines is
among the world's biologically rich countries. x x x So, many of our insects are not even fully known. We
do not know how they all behave to influence the transfer of genetic materials from plants to other plants.
We do not fully know what we do not know about the intricate interactions between plants and between
insects and other living things that define the universe of our healthful and balanced ecology. The universe
of our healthful and balanced ecology certainly go beyond specific crops. I am concerned that, absent a
full as against partial understanding of the intricate web of genetic flows and interactions among plants,
animals and other living things in our wet and tropical ecosystems, it will require extraordinary care to
tamper with any one element of this swirl of interrelationships. This is notwithstanding the seeming
preponderance of evidence of safety in other countries and environment that are certainly not the same
as ours. x x x we must be extra careful because the effects might be irreversible. Introducing a genetically
modified plant x x x could cause a string of changes across many plants that, like the green revolution or

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in the case of medicine and the two other cases cited above, could turn out and only to be realized much
later to be harmful to humans and the environment more than they were intended to be useful. x x x let
us ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our high
biodiversity this is a particular condition in the Philippines; and (2) tested for error levels that are
acceptable to or which can be tolerated by our people. My affidavit states a three-stage approach to this.
x x x the tests that we will be doing is a test process acceptable to all as well rather than merely concocted
or designed by just a few people x x x must be a product of wider citizens' participation and reflect both
scientific and traditional knowledge and cultural sensitivity of our people. It is in the NBF after all, x x
x introducing BT Talong in the Philippines must be decided on the grounds of both science and public policy
and public policy, in this case, must involve full public disclosure and participation in accepting both the
potential gains and possible pains of BT Talong. The stakes, both positive and negative, are so high that I
believe BT Talong would require more public scrutiny and wider democratic decision making beyond the
[realm] of science. x x x for the sake of our country and our rich biodiversity x x x prudence requires that
maximum efforts be exerted to ensure its safety beyond the parameters of science and into the sphere of
public policy. For to fail in doing so what might be highly anticipated to be beneficial may in some twist of
failure or precaution and prudence and failure for due diligence to establish the safety of Bt
Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly do
not want to do. I submit these views to the Court.

x x x x

Dr. Davies:chanRoblesvirtualLawlibrary

x x x another thing I would like to point out to the Court is, if you come into a market in the Philippines
and you see nice Talong, it has probably been treated with various insecticides. So, there has been
insecticide spray on your tips in your crops which are going to be harm on your farmers, your farmer's
children, the insect populations and also dangerous to the consumers as well. By contrast, Bt Talong, if it
is adopted, the BT has been shown to be beneficial to the insects and the environment and also has been
shown not to be toxic in food. Therefore, we are changing a highly toxic chemical application for a much
more benign modern technique that is beneficial to the environment and beneficial to the consumers.
That is my comment with the views just made by my Filipino colleagues, your Honors.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone population or a
reduction of that population it would still be both not beneficial to the healthful and balanced ecological
health of the ecosystem. So to say that because the population of insects are exploded and the diversity
of insects exploded as a result of this particular intervention is not necessarily good. That is my first point.
The second one, you mentioned x x x the "talong" is laden with pesticide. The same pesticide were advised
by scientists from the USAID before for us to use in this country because this is how to expand our
production of food. This was part of the green revolution, the systemic use of pesticides and fertilizer.
Now, of course, they were misused, I can guarantee that but, again, if that be the case, in the case of
pesticide why can it not be in the case of BT that it can also be misused? x x x we are talking here not of
the science or of the technology but on the policy aspect of the adoption of the technology. As I said, I am
talking about the bakery not of a baked-bread.

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

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Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the use of Bt
Talong, then, that kind of misuse is not going to happen x x x. Now, in the Philippines, we have a very strict
highly monitored field testing and I think Dr. Malayang knows about that because he was one of those
who prepared the guidelines for the field testing. So that is not going to happen, it is a very strict regulatory
system. We are known for that, actually, and...

x x x x

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

No, no. It does not happen because we have a risk management plan x x x.

x x x x

Dr. Halos:chanRoblesvirtualLawlibrary

x x x As far as do we know what is happening after we have given approval, yes, we are monitoring. We
are monitoring as far as BT corn is concerned. We are monitoring, continuously monitoring, not only for
the beneficial insects but also the effects that is continuing, we are also continuing to monitor the weeds,
weed population. In weed we decide to spray...

Dr. Malayang:chanRoblesvirtualLawlibrary

And why is this, ma'am, why are we monitoring? Because they could be harmful?

Dr. Halos:chanRoblesvirtualLawlibrary

No we have to know what is happening.

Dr. Malayang:chanRoblesvirtualLawlibrary

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why monitor?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, we are going to give you the data for that because you keep on asking, you know, you asked for a
long term and we are going to give you that complete data.

x x x x

Dr. Medina:chanRoblesvirtualLawlibrary

I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies mentioned
that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are safe, Dr. Davies? Are
you aware of anti-nutrients and allergens and other kinds of protein x x x it is a misleading generalization.
Secondly, I would like to say also that, when you say that BT crops is beneficial to insect population but,
how about humans? But, let me tell and inform the Honorable Justices also that, in agriculture, there can
be, the pests are there to reduce the yield. There are also diseases so, that this Bt is only controlling one

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kind of pest and, in my monitoring of BT corn as an example to this 2 years after the commercialization in
2003, at first planting in 2003, the corn is attacked by about a dozen insect pests and six major diseases.
The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in eggplant, there are many
fungal diseases, "phomopsis" x x x So in that case it is not field safe that you will not be using pesticide
anymore with BT eggplant. When you use the BT eggplant, assuming that there is no more insect pests x
x x There are many other methods of control and, therefore, do not assume that you do not use pesticide
therefore, BT is the only solution. That is also a risky and wrong generalization or statement, x x x Dr. Halos
x x x says that field tests are safe. I intend to disagree with that. Safe to what? Especially to contamination.
If I may use this picture of the field testing of the Bt eggplant x x x it was encircled with cyclone wire with
a diameter of something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that, the
size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that case, they can easily
get in and get out and when they settle into the flowers and snip nectars and the fall of the pollen then
they can bring out the pollen to contaminate outside that. In fact, even assuming that the fence is very
small in size of the mess, the holes, still the insects can fly above that fence because the fence is only
about 5 feet in height. So, in that case it is not safe. Some arguments say that "well the pollen will be
dead" but, according to this technical manual of the Training Workshop On Data Collection for
Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant Eggplant, that
is the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is one of the main researchers
the datas, here say according to "Rasco", cited by Dr. Narciso, is that the pollen can live 8 to 10 days
pollen by ability at 20 to 22 degrees centigrade, with a relative humidity of 50 to 55. x x x Meaning to say,
that pollen can survive. This can fly as fast as something like 60 kilometers per hours so it just take may be
3 minutes and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their
normal foraging.

x x x x

Dr. Medina:chanRoblesvirtualLawlibrary

x x x There is no data on the contamination so how come they argue, how can they conclude that it is safe
when they have not monitored any potential pollen flow by insect mitigated or insect mediated flow
pollen? So, in that case, the conclusion or the statement is really beyond what their data may be is if their
data is about safety.

x x x x

Dr. Ebora:chanRoblesvirtualLawlibrary

x x x x

x x x I hope that we will be able to look at the experimental design and you will see that all the things are
properly addressed, our risk assessment was done step by step, x x x I beg to disagree with my friend Dr.
Medina because it is becoming ... we are confusing 2 things. We are not referring to contained trial. We
are referring to confined field trial and in the design of this particular experiment, you have
your BT eggplant, your non-BT eggplant so that you can compare the performance with the 2 crops. And,
on design, you have 5 rows of plant BT eggplants that will serve as a pollen trap. When we say pollen trap
is that it just open the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and
then, after that, you have a space of 200 meters surrounding the field which is the isolation distance. That
means no eggplant should be present in that particular distance because that is the isolation distance that

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is found to be safe, x x x we know that Bt protein is very specific x x x effective only against caterpillar x x
x if they are eaten by other organism, they are not affected because it is very specific. The gut of the larva
is very alkaline while the gut of other insects is likely acidic and, in that case, it does not have any harmful
effect, x x x So another thing is we are saying that it seems to be ridiculous that you are saying that
honeybee is going to fly from the fence and the size were even indicated. I would like to indicate that, that
is not the purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is quite,
unfortunately, being done by other groups who are against the technology. x x x We should be able to
have our own space, our own time, considering the given regulation. Follow them. But our
experimentation not be destroyed because it is only then that we will be able to get the valuable data
that is needed for an informed decision. Without that we will not be able to proceed and I hope we can
discuss this based on the merits of the field trial, not from any other concern because the writ
of kalikasan is about the effect of field trial in the environment.

Dr. Medina:chanRoblesvirtualLawlibrary

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that the
"CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if you can read
by chemical and by physical research communications this is Volume 271, pages 54-58, authored by
Vasquez Pardonnet, published in 2000, publication under letter (b), "CrylAcc protoxin" binds to the
mucosal surface of the mouse small intestine. Small intestine ay mammal po iyan so, meaning, it is a proxy
animal for safety [testing] to humans because we are also mammals so, the mice are usually the mammals
12 years ago, the data has been already there that there is binding site, therefore it is not only specific to
insects but also to mammals. x x x he is saying that, by working on the natural BT is the same as the
transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids. And the
transformed GM Crop contains a fragment of that BT gene which is only half of that. And the mechanism,
by the way, x x x the natural toxin is broken into smaller pieces inside the intestine of the insects because
it is alkaline in terms of its system "ph" and for humans acidic. So it does not work. But, because the
transformed BT is already half, almost half of the normal or natural[ly] occurring BT protein, it is already
activated and, in that case, that is the reason why there is a test and immediate effect to non-insect,
meaning, to mammal, so that is the explanation of scientist doing studies on that aspect.

x x xx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear vision; x x x I
will give some example. Yes, BT toxin, was it really good biological control agent? But it is a completely
different gene when you produce it into an edible plant inside genetically. So, these are 2 different things.
What will happen? We are scared that the efficacy, the use of BT toxin as a spray, as biological control
agent, will be vanished because now there will be resistance against those in BT toxin, x x x resistance is
coming very quickly, just like antibiotic resistance, x x x The second thing, I have asked many plant
biologists this simple question, simple honest question. Do you know any plant that can kill a bee or a
moth? No! There is no way, why? Because those are the "pollinators". Plant never kills a bee or a moth
that goes against nature, x x x So, nature, for thousands of years, farmers help select or adopt edible non-
toxic plants. And, now, with the high science we are converting them, non-toxic edible plant into a toxic
plant. So not only toxic for the human, for the root microorganisms, x x x Those eggplants are not only for
humans to consume. So human effect, we do not know but what will be the effect? Who will mind the
effect? Is it the animal which goes through it? x x x in India, x x x farmers x x x while growing BT cotton x x

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x the leaves and other they use to attract animals to eat. x x x they found suddenly one thing that
the BT cotton plants are not touched by those buffalos, those cows, those [boars], but they can distinguish
which is BT and non-BT. x x x and when their animals started dying in some cases, they always blame, it is
this animal which has eaten that BT? x x x these are [going] against nature. Only few edible seed plants
are there and we are converting one safest plant into a poisonous and toxic plant and what is the effect
on the root microorganisms on the degrading animals and other? We do not know. That hard thing is the
tunnel vision, the confined field trial, x x x why implement this confined field trial? Is this safe? Why do
they have to do this x x x these things do good for a normal hybrid that is something but for the gene
concept we cannot follow the same separation rules, same rules? So those are used, those separation
distincts, those parameters are used not for the gene. So, which is the safe field trial protocol for the gene
plants? We do not know. So there goes against [the] writ of kalikasan.

x x x x

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

How much is the increase in crop yield? x x x

Dr. Halos:chanRoblesvirtualLawlibrary

x x x The average increase yield is about 24% and that is for corn. And this data is actually taken by our
own Filipino scientists, Dr. Lluroge and Dr. Gonzales.

x x x x

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn so, you
mean to say that corn production in the country has gone up and, because of that, you are saying that
24% and the income of farmers had gone up as well? Do you mean to say that the price of com had also
gone up as a result of the increase in the volume of com production in the Philippines?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, the price is dictated by the market.

Dr.Malayang:chanRoblesvirtualLawlibrary

That is precisely the point.

Dr. Halos:chanRoblesvirtualLawlibrary

Yes.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a technology such
as GM Com or GM Talong affecting market there is also not only the regulatory but economic regime that

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is attendant to it that makes adjustments. So it may not be harmful to humans because we will not come
out when we eat it but it might be harmful to the economy of a particular agricultural crop. x x x

x x x x

Dr. Ebora:chanRoblesvirtualLawlibrary

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those are
independent studies. And, precisely, this is to determine the effect on natural enemies and the different
insects x x x and some of those are already available, x x x you will be able to protect the environment
only if you know how to have a proper information in making the decision. So, again, I am saying that, in
field trial, you will be generating a lot of information that you will be able to use in making a wise decision
and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding
butterflies and moths. Because they are not affected by BT because they are adult insects. The only one
that is affected are actually the larva, not even the pupa. So, we would like that to be clear because it
might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime and
that is the reason why we have a continuous breeding program. So, it is a natural mechanism by an
organism as mode of ad[a]potation. x x x are you telling us that we are going to stop our breeding work
because, anyway, they are going to develop resistance. I think it is a wrong message x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology, you can
have the effect if you have, for example, the insects, you have a receptor. The toxin will bind into the
receptor. Toxin has to fall and then the toxin has re-insert into the membrane. If you eliminate one of
those steps you do not have any toxicity. So, that means binding by itself will not be toxicity. It is a wrong
impression that, since you have binding, there will be toxicity. It is simply wrong because, the actuality
that it should bind, it should fall then, it should insert, and it is a very common x x x. To say that binding is
equivalent to toxicity is simply not true.

The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is basically
the entire crystal protein. If it is already inside the gut of the insect it has to be clipped by
the purchase coming from the gut and you have it activated and you have the toxin. So what you have in
plant is already the toxin since the anther and the toxin, and the toxin in microorganisms, the anther which
are already clipped by a purchase are the same. So, to say that they are different is actually wrong. You
are comparing protoxin and toxin.

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is why
you have to characterize them and you have to separate the protein that are causing problem and protein
that are not causing problem. That is why you have allergen and, as explained by Dr. Cariño, you have to
check the sequence. x x x

x x x x

Dr. Chakraborty:chanRoblesvirtualLawlibrary

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x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the
production not that much into the safety. You have to look into it carefully that how much will get this
efficacy, not the safety to that extent x x x. Second point x x x there is this already mentioned that
European Union there is no consensus, x x x they have published and submitted the systemic list of
genetically modified crop need for new approach in risk assessment. So that is what is needed. There is
another article, how does scientific risk assessment of GM crop fit within wider risk analysis, x x x This is
genetic engineering. The production process is very precise in selecting the inserted gene but not in its
enhancement, x x x they are never looking into it. The second thing, they do not look into that from the
laboratory condition to what is the real life situation. They do not take that into account x x x so this
assessment protocol has to be modified or changed, x x x in the IAASTD or International Assessment of
Agricultural Knowledge, Science and Technology for Development. There is a supreme body, so many
nations, so many experts, scientists x x x. Only sustainable agricultural practice and that is the only
alternative. This GM technology is not going to help them x x x In my country also, when the BT toxin
evaluation was there, everybody was telling that this is pro-poor, this is scale neutral so, everybody will
be benefitted by that. So, we started questioning, x x x "What are the actual economic analysis indeed?
Just show me". Then, they come up with an answer. Scale neutral means that even small farmers initially
wanted BT cotton and big farmers also wanted BT cotton. They are partisans. It is not the economic
benefit because, economically, it is not going to be beneficial so it is very much scale dependent its benefit.
So, only the big farmers, large farmers and x x x the vegetable field you never can give separation. Chances
you never can give refuge. The 1/5 of the land given for growing pests so that you cannot do. So it cannot
help technology. They have developed this technology for partisan large scale farming to completely
automated for BT technology where no label will be there. But the failed experiments, the contracts
whose patent will be over within 2-3 years, they are testing them in our country. So that is the bottom
line.

x x x x

Chairperson:chanRoblesvirtualLawlibrary

Let us put, probably, a close to this hot tub proceeding now.

The issue that the Court is really interested to resolve is whether or not the conduct of the field trial
of BT Talong by the respondents has violated or has threatened to violate the right of the people to a
balanced and healthful ecology. Is there absolute certainty that it has not so violated such right. Because
that is the requirement for applying or not applying the precautionary principle, x x x

Dr. Cariño:chanRoblesvirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...

Chairperson:chanRoblesvirtualLawlibrary

But there is no absolute certainty?

Dr. Cariño:chanRoblesvirtualLawlibrary

Well, quite certain, your Honor, because we have placed all the necessary measures and they did not
show us, you know, there is no evidence of harm that has been shown to this Court. There is no evidence

394
at all.

Chairperson:chanRoblesvirtualLawlibrary

That is your opinion.95ChanRoblesVirtualawlibrary

As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of contention
between the expert witnesses, i.e., the safety of Bt talong to humans and the environment. Evidently,
their opinions are based on contrasting findings in hundreds of scientific studies conducted from the
time Bt technology was deployed in crop farming. These divergent views of local scientists reflect the
continuing international debate on GMOs and the varying degrees of acceptance of GM technology by
states especially the developed countries (USA, EU, Japan, China, Australia, etc.).

Before proceeding to the current state of global GMO research, we briefly address the strong objection
of petitioners to the CA's reliance on the research conducted by Prof. Seralini, the French scientist whose
study was published in September 2012 in Food and Chemical Toxicology, which was criticized as a
"controversial feeding study." Seralini studied rats consuming Monsanto's Roundup Ready treated corn
for two years (using the same kind of rats prone to tumors used by Monsanto in obtaining original
approval for its product and the same methodologies, but did it for 2 years which is longer than the 90-
day experiment period done by Monsanto). The rats formed massive cancerous tumors. All three test
groups of rats, with 10 rats in each group, died more frequently, suffered from liver problems, and had a
pronounced number of tumors specifically with grotesque mammary and testicular tumors.96

Seralini's findings created an uproar and the study was expunged from the publication in November 2013
even though the Editor-in-Chief found no evidence of fraud or intentional misrepresentation of the data.
Seralini stood by his work and further conducted similar laboratory experiments. Critics faulted the
experimental method, saying the number of rats studied was too small and their diet was skewed when
compared with their natural food intake. But over 300 scientists condemned the retraction, they said that
the retraction lacked scientific integrity and requested to reinstate the study. Last June 2014, Seralini's
controversial study was republished and has passed a third peer review arranged by the journal that is
republishing the study, Environmental Sciences Europe. The republished version contains extra material
addressing criticisms of the original publication and the raw data underlying the study's findings, and
accompanied by a separate commentary by Prof. Seralini's team describing the lobbying efforts of GMO
crop supporters to force the editor of the Food and Chemical Toxicology to retract the original
publication.97

The aforesaid incident serves to underscore the crucial role of scientists in providing relevant information
for effective regulation of GMOs. There can be no argument that "[s]ince scientific advice plays a key role
in GMO regulations, scientists have a responsibility to address and communicate uncertainty to policy
makers and the public."98

GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not diminished by
extensive use at present of GM technology in agriculture. The global area of GM crops has reached over
175 million hectares in 2013, more than a hundredfold increase from 1.7 million hectares in
1996.99 However, the worldwide debate on safety issues involving GM foods continues.

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It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature of the
technology itself. The process of combining inter-species genes, which is called recombinant DNA
technology, does not have the checks and balances that are imposed by nature in traditional breeding.
Because of this there is a risk of genetic instability. This means that no one can make any accurate
predictions about the long-term effects of GMOs on human beings and the environment. Extensive testing
in this regard is either very expensive or impractical, and there is still a great deal about the process that
scientists do not understand.100

The basic concepts for the safety assessment of foods derived from GMOs have been developed in close
collaboration under the auspices of the Organization for Economic Co-operation and Development (OECD)
and the United Nations World Health Organization (WHO) and Food and Agricultural Organization (FAO).
The OECD's group of experts on biosafety recommended conducting the safety assessment of a GM food
on case-by-case basis through comparison to an existing food with a long history of safe use. Thus, the
concept of substantial equivalence was developed that is widely used by national and international
agencies, including the US Food and Drug Administration (FDA), the WHO, OECD and the FAO.101

"Substantial equivalence embodies the concept that if a new food or food component is found to be
substantially equivalent to an existing food or food component, it can be treated in the same manner with
respect to safety (i.e., the food or food component can be concluded to be as safe as the conventional
food or food component)."102 The safety assessment of a genetically modified food is directed by the
results of a comparison between the genetically modified food and its conventional counterpart. It follows
a stepwise process aided by a series of structured questions. Factors taken into account in the safety
assessment include:
• identity;

• source;

• composition;

• effects of processing/cooking;

• transformation process;

• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

• protein expression product of the novel DNA:

• effects on function;

• potential toxicity;

• potential allergenicity;
• possible secondary effects from gene expression or the disruption of the host DNA or metabolic
pathways, including composition of critical macro, micro-nutrients, anti-nutrients, endogenous toxicants,
allergens, and physiologically active substances; and,

• potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary

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The above factors are particularly pertinent to the assessment of foods derived from genetically modified
plants.104 However, the concept of substantial equivalence as the starting point of risk assessment was
criticized for being "unscientific and arbitrary" and "intentionally vague and ill-defined to be as flexible,
malleable, and open to interpretation as possible." It is likewise argued that "comparisons are designed
to conceal significant changes resulting from genetic modifications," "the principle is weak and misleading
even when it does not apply, effectively giving producers carte blanche", and that there is insufficiency of
background information for assessing substantial equivalence. A paper presented at a WHO workshop
pointed out that the main difficulty associated with the biosafety assessment of transgenic crops is the
unpredictable nature of transformation. This unpredictability raises the concern that transgenic plants
will behave in an inconsistent manner when grown commercially.105

The method of testing GM foods was further described as inadequate, as currently the testing procedures
consist almost exclusively of specific chemical and biochemical analytical procedures designed to
quantitate a specific nutrient or a specific toxin or allergen. It was noted that in actual practice, the
investigator compares only selected characteristics of the genetically engineered food to those of its non-
genetically engineered counterpart. These testing schemes are viewed as completely incapable of
detecting unsuspected or unanticipated health risks that are generated by the process of genetic
engineering itself. Hence, clinical tests are recommended because only such tests have the broad
specificity and relevance to human physiology needed to detect the wide range of allergens and toxins
that might result from unexpected side-effects of the genetic engineering process.106

In another review article, it was pointed out that since a genetic modification is aimed at introducing new
traits into organisms, the result will always be a different composition of genes and proteins. The most
reasonable interpretation therefore is that a food derived from a GMO is considered substantially
equivalent to its traditional counterpart if the genetic modification has not resulted in intended or
unintended alterations in the composition of relevant nutrients and inherent toxicants of the organism,
and that the new genes and proteins have no adverse impact on the dietary value of the food and do not
therefore pose any harm to the consumer or the environment. It was thus concluded that establishing
substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to analyze the safety of
a new food, and hence in the testing of new foods, the latest scientific methods have to be used. All
conceivable efforts to protect consumers from health risks should thus be made, and at the same time,
consumers should be adequately informed about the real extent of risks and hazards.107

The GMO global debate has so intensified that each side has accused the other camp of mounting "paid
advocacy" and criticizing studies adverse to their respective positions as flawed or unscientific. Both the
agri-business industry, and groups opposed to GMOs including the organic farming industry, had utilized
enormous resources and funds for lobbying and media campaigns locally and internationally.

What appears to be highlighted in the promotion of GM crop production is the marked reduction in the
use of harmful chemical pesticides.108 The resulting increase in crop yields grown on relatively small
parcels of land is also regarded as a solution to the problem of feeding a fast growing world population.
Proponents of GM biotechnology insist that GM foods are safe to humans and the environment based on
scientific studies. On the other hand, anti-GM activists disseminate adverse results of recent studies
confirming the health and environmental hazards of genetically engineered crop farming. Also, some
countries have maintained a firm stance against genetically engineered crops or GM foods, such as France
and Austria. Over the years, however, accumulated evidence of the dangers of GMOs, as well as unrealized
socio-economic benefits, has been increasingly recognized by the scientific community.

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That GE farming increases crop yield has been debunked by new studies proving the contrary. In the
article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible Technology cited reports
from actual field studies in different countries revealing downward figures for Bt crops, as summarized
below:
• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM counterparts.

• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade - with the
disruptive effect of the GM transformation process accounting for approximately half the drop in yield.

• Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the
International Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that GM
crop yields were "highly variable" and in some cases, "yields declined".

• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed
studies conducted by academic scientists using adequate controls, concluded that genetically engineered
herbicide tolerant soybeans and herbicide-tolerant corn has not increased yields while insect-resistant
corn has only marginally improved yields. Traditional breeding outperforms genetic engineering hands
down.

• In developing countries, crop failure can have severe consequences as illustrated in India, where a large
number of cotton farmers, unable to pay back high interest loans, have committed suicide. Several
investigations have implicated the unreliable performance of Bt cotton as a major contributor.

• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest problems and
no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500 by 2002. As of 2004,
85% of the original Bt cotton farmers had given up while those remaining had to be subsidized by the
government. Similarly in the US, Bt cotton yields are not necessarily consistent or more
profitable.109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports corporate
control and impedes common persons' access to adequate food. The root cause of hunger is not a lack of
food, GM critics say, but a lack of access to food. The poor lack money to buy food and lack of land on
which to grow it. It is essential to follow sustainable traditional farming practices that keeps food
production in the hands of small-scale farmers, thereby reducing corporate control.110

As regards the existing uncertainties of potential long-term effects of the release into the environment of
GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term Effects) study of
2009,111 made for the European Commission, analyzed more than 700 scientific publications from all over
the world about GMOs and their potential effects on environment including biodiversity, and received
contributions to online surveys from 100 to 167 invited environmental experts. This study declared the
following uncertainties:
• increased fitness of GM plants;

• outbreeding depression after hybridization with wild relatives;

• outcrossing between related species and the fate of a transferred GM trait;

• altered flower phenology;

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• altered fecundity, increasing seed (gene) flow;

• increased frequency of horizontal gene flow;

• resistance development of pests;

• effects on non-target organisms;

• effects on non-target organisms due to altered nutritional composition of the GM plant;

• effects on non-target organisms due to accumulation of toxic compounds;

• effects on rhizo sphere microbiota;

• effects on symbiotic non-target organisms;

• changes in soil functions caused by GM traits;

• effects on biological control;

• altered use of agrochemicals;

• indirect changes in susceptibility of crops against pathogens;

• adverse effects on agro-biodiversity;

• indirect effects in fertilizer use;

• potential changes in landscape structure;

• increased production of greenhouse gases;

• increased mineral nutrient erosion and fertilizer leaching;

• altered chemical attributes of soil fraction;

• emerging of stacked events;

• the necessity of regional differentiation of risk assessments.112ChanRoblesVirtualawlibrary

A critical observation was made on the argument that there is not enough evidence to reject the
hypothesis that GMO and GM food is safe. The fact emphasized was that experiments designed to clarify
potential adverse effects on health or the environment are nearly absent in peer-reviewed journals.
Scientific uncertainty, omitted research areas, and lack of basic knowledge crucial to risk assessments
have become apparent. The present uncertainty warrants further research and it has been demonstrated
that there is a risk of bias relying on hypotheses that dominate mainstream science. There is therefore a
need for independent research that is without prejudice and unbiased by economic and professional

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interests.113 In another article it was noted that the clinical trials carried out to ensure that negative
externalities do not affect humans and the environment are conducted by the same private firms that
created the products, raising conflict of interest concerns.114

While existing literature on health effects of GM foods indicates that they are generally safe, and similar
conclusions have been drawn by government agencies and scientific organizations such as FAO/WHO and
Society of Toxicology, a growing number of independent scientists have spoken strongly against such
generalizations from limited research mostly sponsored by biotech companies.

In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from 82
countries expressed that they are extremely concerned about the hazards of GMOs to biodiversity, food
safety, human and animal health, and demanded a moratorium on environmental releases in accordance
with the precautionary principle. They are opposed to GM crops that will intensify corporate monopoly,
exacerbate inequality and prevent the essential shift to sustainable agriculture that can provide food
security and health around the world, and called a ban on patents of life forms and living processes which
threaten food security, sanction biopiracy of indigenous knowledge and genetic resources and violate
basic human rights and dignity.115

On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an
Independent Science Panel on GM at a public conference in London. On June 15, 2003, they released a
Final Report116 as their contribution to the National GM Debate in UK. In a summary117 of the final report,
these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for investors"

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests

3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

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o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence in
claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns

o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the
transgenic process or the transgenic construct, and may hence be general to all GM food

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target insects,
and some are potent immunogens and allergens for humans and other mammals

o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines known to
suppress the immune system, or linked to dementia, neurotoxicity and mood and cognitive side effects;
vaccines and viral sequences such as the 'spike' protein gene of the pig coronavirus, in the same family as
the SARS virus linked to the current epidemic; and glycoprotein gene gpl20 of the AIDS virus that could
interfere with the immune system and recombine with viruses and bacteria to generate new and
unpredictable pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the spread
of transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently account
for 75% of all GM crops worldwide, are both systemic metabolic poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological

toxicities, and birth defects in humans and mammals; also toxic to butterflies and a number of beneficial
insects, to larvae of clams and oysters, Daphnia and some freshwater fish, especially the rainbow trout; it
inhibits beneficial soil bacteria and fungi, especially those that fix nitrogen.

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o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to many
body functions have been reported after exposures at normal use levels; glyphosate exposure nearly
doubled the risk of late spontaneous abortion, and children born to users of glyphosate had elevated
neurobehavioral defects; glyphosate retards development of the foetal skeleton in laboratory rats,
inhibits the synthesis of steroids, and is genotoxic in mammals, fish and frogs; field dose exposure of
earthworms caused at least 50 percent mortality and significant intestinal damage among surviving
worms; Roundup (Monsanto's formulation of glyphosate) caused cell division dysfunction that may be
linked to human cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances the
scope and probability of horizontal gene transfer and recombination, the main route to creating viruses
and bacteria that cause disease epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the
laboratory millions of recombinant viruses that have never existed in billions of years of evolution

o Disease-causing viruses and bacteria and their genetic material are the predominant materials and tools
of genetic engineering, as much as for the intentional creation of bio-weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of human
volunteers; antibiotic resistance marker genes can spread from transgenic food to pathogenic bacteria,
making infections very difficult to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian cells,
raising the possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the animals but also for
human beings consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially unstable
and prone to horizontal gene transfer and recombination, with all the attendant hazards: gene mutations
due to random insertion, cancer, re-activation of dormant viruses and generation of new viruses.

13. A history of misrepresentation and suppression of scientific evidence

o There has been a history of misrepresentation and suppression of scientific evidence, especially on
horizontal gene transfer. Key experiments failed to be performed, or were performed badly and then
misrepresented. Many experiments were not followed up, including investigations on whether the CaMV
35S promoter is responsible for the 'growth-factor-like' effects observed in young rats fed GM potatoes.

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GM crops have failed to deliver the promised benefits and are posing escalating problems on the farm.
Transgenic contamination is now widely acknowledged to be unavoidable, and hence there can be no
co-existence of GM and non-GM agriculture. Most important of all, GM crops have not been proven
safe. On the contrary, sufficient evidence has emerged to raise serious safety concerns, that if ignored
could result in irreversible damage to health and the environment. GM crops should therefore be firmly
rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all aspects
relevant to health and the environment. In addition, they bring food security and social and cultural well
being to local communities everywhere. There is an urgent need for a comprehensive global shift to all
forms of sustainable agriculture.118

In 2008, a Global Report119 was released by the International Assessment of Agricultural Knowledge,
Science and Technology for Development (IAASTD), a three-year international collaborative effort (2005-
2007) developed out of a consultative process involving 900 participants and 110 countries from all over
the world. This global initiative assessed agricultural knowledge, science and technology (AKST) in relation
to meeting development and sustainability goals of (1) reducing hunger and poverty; (2) improving
nutrition, health and rural livelihoods; and (3) facilitating social and environmental sustainability. The
report concluded that a radical transformation of the world's food and farming systems - especially the
policies and institutions that affect them - is necessary if we are to overcome converging economic and
environmental crises and feed the world sustainably. It also warned that technologies such as high-
yielding crop varieties, agrochemicals and mechanization have primarily benefited the better-resourced
groups in society and transnational corporations, rather than the most vulnerable ones. In general, the
IAASTD found little evidence to support a conclusion that modern biotechnologies are well suited to
meeting the needs of small-scale and subsistence farmers, particularly under the increasingly
unpredictable environmental and economic conditions tha they face.120

More recently, in 2013, the European Network of Scientists for Social and Environmental Responsibility
(ENSSER), an international group of more than 90 scientists, academics and physicians, released a
statement that there is no scientific consensus on the safety of GM foods and crops.121 The statement122 is
herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal, social
and safety assessment aspects of genetically modified organisms (GMOs), we strongly reject claims by GM
seed developers and some scientists, commentators, and journalists that there is a "scientific consensus"
on GMO safety and that the debate on this topic is "over".

We feel compelled to issue this statement because the claimed consensus on GMO safety does not exist.
The claim that it does exist is misleading and misrepresents the currently available scientific evidence and
the broad diversity of opinion among scientists on this issue. Moreover, the claim encourages a climate
of complacency that could lead to a lack of regulatory and scientific rigour and appropriate caution,
potentially endangering the health of humans, animals, and the environment.

Science and society do not proceed on the basis of a constructed consensus, as current knowledge is
always open to well-founded challenge and disagreement. We endorse the need for further independent
scientific inquiry and informed public discussion on GM product safety and urge GM proponents to do the

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same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a comprehensive review of
animal feeding studies of GM crops found "An equilibrium in the number [of] research groups suggesting,
on the basis of their studies, that a number of varieties of GM products (mainly maize and soybeans) are
as safe and nutritious as the respective conventional non-GM plant, and those raising still serious
concerns". The review also found that most studies concluding that GM foods were as safe and nutritious
as those obtained by conventional breeding were "performed by biotechnology companies or associates,
which are also responsible [for] commercializing these GM plants".

A separate review of animal feeding studies that is often cited as showing that GM foods are safe included
studies that found significant differences in the GM-fed animals. While the review authors dismissed these
findings as not biologically significant, the interpretation of these differences is the subject of continuing
scientific debate and no consensus exists on the topic.

Rigorous studies investigating the safety of GM crops and foods would normally involve animal feeding
studies in which one group of animals is fed GM food and another group is fed an equivalent non-GM diet.
Independent studies of this type are rare, but when such studies have been performed, some have
revealed toxic effects or signs of toxicity in the GM-fed animals. The concerns raised by these studies have
not been followed up by targeted research that could confirm or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent research
calls of the European Union and the French government to investigate the long-term health impacts of
GM food consumption in the light of uncertainties raised by animal feeding studies. These official calls
imply recognition of the inadequacy of the relevant existing scientific research protocols. They call into
question the claim that existing research can be deemed conclusive and the scientific debate on biosafety
closed.

2. There are no epidemiological studies investigating potential effects of GM food consumption on

human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects. However, no
epidemiological studies in human populations have been carried out to establish whether there are any
health effects associated with GM food consumption. As GM foods are not labelled in North America, a
major producer and consumer of GM crops, it is scientifically impossible to trace, let alone study, patterns
of consumption and their impacts. Therefore, claims that GM foods are safe for human health based on
the experience of North American populations have no scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM foods are safe, or
that they are no more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical of the

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regulatory system for GM foods and crops in that country. The report declared that it is "scientifically
unjustifiable" to presume that GM foods are safe without rigorous scientific testing and that the "default
prediction" for every GM food should be that the introduction of a new gene will cause "unanticipated
changes" in the expression of other genes, the pattern of proteins produced, and/or metabolic activities.
Possible outcomes of these changes identified in the report included the presence of new or unexpected
allergens.

A report by the British Medical Association concluded that with regard to the long-term effects of GM
foods on human health and the environment, "many unanswered questions remain" and that "safety
concerns cannot, as yet, be dismissed completely on the basis of information currently available". The
report called for more research, especially on potential impacts on human health and the environment.

Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM technology. For example,
a statement by the American Medical Association's Council on Science and Public Health acknowledged
"a small potential for adverse events ... due mainly to horizontal gene transfer, allergenicity, and toxicity"
and recommended that the current voluntary notification procedure practised in the US prior to market
release of GM crops be made mandatory. It should be noted that even a "small potential for adverse
events" may turn out to be significant, given the widespread exposure of human and animal populations
to GM crops.

A statement by the board of directors of the American Association for the Advancement of Science (AAAS)
affirming the safety of GM crops and opposing labelling cannot be assumed to represent the view of AAAS
members as a whole and was challenged in an open letter by a group of 21 scientists, including many long-
standing members of the AAAS. This episode underlined the lack of consensus among scientists about
GMO safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop and food safety.
However, the report based on this project, "A Decade of EU-Funded GMO Research", presents no data
that could provide such evidence, from long-term feeding studies in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the
development of safety assessment approaches". Only five published animal feeding studies are
referenced in the SAFOTEST section of the report, which is dedicated to GM food safety. None of these
studies tested a commercialised GM food; none tested the GM food for long-term effects beyond the
subchronic period of 90 days; all found differences in the GM-fed animals, which in some cases were
statistically significant; and none concluded on the safety of the GM food tested, let alone on the safety
of GM foods in general. Therefore the EU research project provides no evidence for sweeping claims about
the safety of any single GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies "document the
general safety and nutritional wholesomeness of GM foods and feeds" is misleading. Examination of the
studies listed reveals that many do not provide evidence of GM food safety and, in fact, some provide
evidence of a lack of safety. For example:chanRoblesvirtualLawlibrary

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• Many of the studies are not toxicological animal feeding studies of the type that can provide useful
information about health effects of GM food consumption. The list includes animal production studies
that examine parameters of interest to the food and agriculture industry, such as milk yield and weight
gain; studies on environmental effects of GM crops; and analytical studies of the composition or genetic
makeup of the crop.

• Among the animal feeding studies and reviews of such studies in the list, a substantial number found
toxic effects and signs of toxicity in GM-fed animals compared with controls. Concerns raised by these
studies have not been satisfactorily addressed and the claim that the body of research shows a consensus
over the safety of GM crops and foods is false and irresponsible.

• Many of the studies were conducted over short periods compared with the animal's total lifespan and
cannot detect long-term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet website as they do
not "document the general safety and nutritional wholesomeness of GM foods and feeds". Rather, some
of the studies give serious cause for concern and should be followed up by more detailed investigations
over an extended period of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target
organisms and effects of the herbicides used in tandem with herbicide-tolerant GM crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks of GM crops. A
review of environmental risk assessment approaches for GM crops identified shortcomings in the
procedures used and found "no consensus" globally on the methodologies that should be applied, let
alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse effects on non-
target and beneficial organisms - effects that are widely neglected in regulatory assessments and by some
scientific commentators. Resistance to Bt toxins has emerged in target pests, and problems with
secondary (non-target) pests have been noted, for example, in Bt cotton in China.

Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies have
associated them with increased herbicide use, the rapid spread of herbicide-resistant weeds, and adverse
health effects in human and animal populations exposed to Roundup, the herbicide used on the majority
of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of GM crops may be
correlated with funding sources. A peer-reviewed survey of the views of 62 life scientists on the
environmental risks of GM crops found that funding and disciplinary training had a significant effect on
attitudes. Scientists with industry funding and/or those trained in molecular biology were very likely to
have a positive attitude to GM crops and to hold that they do not represent any unique risks, while
publicly-funded scientists working independently of GM crop developer companies and/or those trained
in ecology were more likely to hold a "moderately negative" attitude to GM crop safety and to emphasize
the uncertainty and ignorance involved. The review authors concluded, "The strong effects of training and

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funding might justify certain institutional changes concerning how we organize science and how we make
public decisions when new technologies are to be evaluated."

7. International agreements show widespread recognition of risks posed by GM foods and crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003. The
Cartagena Protocol is an international agreement ratified by 166 governments worldwide that seeks to
protect biological diversity from the risks posed by GM technology. It embodies the Precautionary
Principle in that it allows signatory states to take precautionary measures to protect themselves against
threats of damage from GM crops and foods, even in case of a lack of scientific certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven years
to develop international guidelines for the assessment of GM foods and crops, because of concerns about
the risks they pose. These guidelines were adopted by the Codex Alimentarius Commission, of which over
160 nations are members, including major GM crop producers such as the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that they
agree that genetic engineering differs from conventional breeding and that safety assessments should be
required before GM organisms are used in food or released into the environment.

These agreements would never have been negotiated, and the implementation processes elaborating
how such safety assessments should be conducted would not currently be happening, without widespread
international recognition of the risks posed by GM crops and foods and the unresolved state of existing
scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and foods
that have shown adverse effects on animal health and non-target organisms, indicated above. Many of
these studies have, in fact, fed into the negotiation and/or implementation processes of the Cartagena
Protocol and Codex. We support the application of the Precautionary Principle with regard to the release
and transboundary movement of GM crops and foods.

Conclusion

In the scope of this document, we can only highlight a few examples to illustrate that the totality of
scientific research outcomes in the field of GM crop safety is nuanced, complex, often contradictory or
inconclusive, confounded by researchers' choices, assumptions, and funding sources, and in general, has
raised more questions than it has currently answered.

Whether to continue and expand the introduction of GM crops and foods into the human food and animal
feed supply, and whether the identified risks are acceptable or not, are decisions that involve
socioeconomic considerations beyond the scope of a narrow scientific debate and the currently
unresolved biosafety research agendas. These decisions must therefore involve the broader society. They
should, however, be supported by strong scientific evidence on the long-term safety of GM crops and
foods for human and animal health and the environment, obtained in a manner that is honest, ethical,
rigorous, independent, transparent, and sufficiently diversified to compensate for bias.

Decisions on the future of our food and agriculture should not be based on misleading and

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misrepresentative claims that a "scientific consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our political analysts
now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and marginalize
small farmers. As the statement x x x of the 81 members of the World Future Council put it, "While
profitable to the few companies producing them, GMO seeds reinforce a model of farming that
undermines sustainability of cash-poor farmers, who make up most of the world's hungry. GMO seeds
continue farmers' dependency on purchased seed and chemical inputs. The most dramatic impact of such
dependency is in India, where 270,000 farmers, many trapped in debt for buying seeds and chemicals,
committed suicide between 1995 and 2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently addressed the
uncertainties over the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important ingredient
in Ayurvedic medicine, and is of special value for the treatment of diabetes and liver problems. The
attempted commercial propagation of Bt brinjal spawned intense debate and suffered obstacles due to
sustained opposition from local scientists, academicians and non-government organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of eggplant's
diversity, said that if the new technology is adopted, decrease in the use of insecticides, substantial
increase in crop yields and greater food availability, can be expected. But opponents argued, alongside
food safety concerns, that there is a potential for toxic effects on populations of non-target invertebrates,
and potential replacement of traditional landraces as farmers may move towards cultivation of a
restricted number of GE forms. In addition to these issues, there was the additional concern raised over
the transfer of Bt transgenes to non-GE brinjal or its wild relatives, and the consequences for plant
biodiversity.125

Writ petitions were lodged before the Supreme Court of India to stop the release into the environment
of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed a Technical Evaluation
Committee (TEC) composed of experts nominated by the parties to undertake a comprehensive
evaluation of the feasibility of allowing the open field trials of Bt brinjal and submit a final report, and in
the event the TEC is unable to submit said final report, it was directed instead to submit an interim report
within the period set by the Court on the following issue: Whether there should or should not be any ban,
partial or otherwise, upon conducting of open field tests of the GMOs? In the event open field trials are
permitted, what protocol should be followed and conditions, if any, that may be imposed by the Court for
implementation of open field trials." The Court also directed that the TEC would be free to review report
or studies authored by national and international scientists if it was necessary.

In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings, all field
trials should be stopped until certain conditions have been met. A Final Report126 was eventually
submitted to the Court which noted weaknesses in the conditions imposed by the regulatory agencies for
conduct of field trials, as follows: 1) post-release monitoring, an important aspect of environmental and
health safety (if the GE crop is consumed as food) is not given adequate attention; 2) the importance of
need and socio-economic impact assessment of GM products as one of the criteria that should be applied

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in the evaluation at an early stage; and 3) need for additional tests not currently done such as long-term
feeding studies for assessment of chronic and intergeneration toxicity in small animals, genomewide
expression analysis in the toxicity studies to screen for possible unintended effects on host physiology. It
was recommended that a moratorium on field trials of herbicide tolerant crops until the issue had been
examined by an independent committee, and also noted that said technology may not be suitable in the
Indian socio-economic context due to possible impact of extensive use of broad spectrum herbicides on
the environmental biodiversity and smaller average farm size. Examination of the safety dossier of Bt
brinjal indicated certain concerns on the data, which had not been addressed in the course of regulatory
testing leading to approval due to lack of full-time qualified personnel for the purpose. Overall, it was
found that the quality of information in several of the applications is far below what would be expected
and required for rigorous evaluation by a regulatory body and is unlikely to meet international regulatory
guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under certain
conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is generally
believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack the receptor for Cry
toxins, two studies (one in mice and the other in cows) have provided evidence that Cry proteins can bind
to mammalian intestinal epithelial cells. The report also discussed the emergence of resistance in insect
pests, health and food safety of Bt transgenics, and herbicide tolerant crops and their effect on
biodiversity and the environment. Specific recommendations were made to address the foregoing issues
and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and potential for
negative impact than for other species. To justify this, there needs to be extraordinarily compelling
reasons and only when other choices are not available. GM crops that offer incremental advantages or
solutions to specific and limited problems are not sufficient reasons to justify such release. The TEC did
not find any such compelling reasons under the present conditions. The fact is that unlike the situation in
1960s there is no desperate shortage of food and in fact India is in a reasonably secure position. The TEC
therefore recommends that release of GM crops for which India is a centre of origin or diversity should
not be allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former environment
minister Jairam Ramesh placed an indefinite moratorium on its further field testing. This was done after
discussions with scientists, both pro and anti-GM crops, activists and farmers across the country.

GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is governed
primarily by DAO 08-2002 and implemented by the DA through the BPI. Petitioners EMB, BPI and FPA all
maintain there was no unlawful deviation from its provisions and that respondents so far failed to present
evidence to prove their claim that Bt talong field trials violated environmental laws and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory body, was
tasked to "evaluate the potential risks of the proposed activity to human health and the environment
based on available scientific and technical information." Under DA Special Order 241 and 384 (2002) the
STRP membership was expanded to include "an independent pool of experts...tapped by the [BPI] to
evaluate the potential risks of the proposed release of GMOs for field testing, propagation, food, feed to
human health and the environment based on available scientific and technical information."

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DAO 08-2002 supplements the existing guidelines on the importation and release into the environment
of products of modern biotechnology by institutionalizing existing operational arrangements between DA-
BPI and the NCBP. Effective July 2003, applications for field test are received and processed by DA-BPI,
but the approval process for projects on contained use remains under the supervision of NCBP. A
mandatory risk assessment of GM plant and plant products is required prior to importation or release into
the environment. Experiments must first be conducted under contained conditions, then the products are
tested in field trials the product is reviewed for commercial release. Risk assessment is done according to
the principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is science-based,
carried out on a case by case manner, targets a specific crop and its transformation event, adopts the
concept of substantial equivalence in identifying risk, allows review, and provides that the absence of
scientific information or consensus should not be interpreted to indicate the absence or presence and
level of risk.128

Greenpeace, however, claims there is actually only a committee of three to five members which conducts
the risk assessment, and is aided by an informal group, the DA's Biotech Advisory Team (BAT), of
representatives from government biotech regulatory agencies: BPI, BAI, FPA, DENR, DOH and DOST. It also
assails the government regulatory agencies for their refusal to open to scrutiny the names and
qualifications of those incharge of regulation and risk assessment, and for allowing the entry and use
of all GMO applications requested by multinational companies.129

It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for regulating
field trials of GM plants and plant products. EO 514130 establishing the National Biosafety Framework
(NBF) clearly provides that the NBF shall apply to the development, adoption and implementation
of all biosafety policies, measures and guidelines and in making biosafety decisions concerning the
research, development, handling and use, transboundary movement, release into the environment and
management of regulated articles.131 The objective of the NBF is to "[e]nhance the decision-making
system on the application of products of modern biotechnology to make it more efficient, predictable,
effective, balanced, culturally appropriate, ethical, transparent and participatory".132 Thus, "the socio-
economic, ethical, and cultural benefit and risks of modern biotechnology to the Philippines and its
citizens, and in particular on small farmers, indigenous peoples, women, small and medium enterprises
and the domestic scientific community, shall be taken into account in implementing the NBF."133 The NBF
also mandates that decisions shall be arrived at in a transparent and participatory manner, recognizing
that biosafety issues are best handled with the participation of all relevant stakeholders and organizations
who shall have appropriate access to information and the opportunity to participate responsibly and in
an accountable manner in biosafety decision-making process.134

Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the relevant
provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11 (par. 8), the
precautionary approach shall guide biosafety decisions. The principles and elements of this approach are
hereby implemented through the decision-making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are expected
to follow and which their respective rules and regulations must conform with. In cases of conflict in
applying the principles, the principle of protecting public interest and welfare shall always prevail, and no
provision of the NBF shall be construed as to limit the legal authority and mandate of heads of
departments and agencies to consider the national interest and public welfare in making biosafety
decisions.135

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As to the conduct of risk assessment to identify and evaluate the risks to human health and the
environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing a RA to
determine whether a regulated article poses significant risks to human health and the
environment:chanRoblesvirtualLawlibrary

5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based on
available scientific and technical information. The expert advice of and guidelines developed
by, relevant international organizations, including intergovernmental bodies, and
regulatory authorities of countries with significant experience in the regulatory supervision
of the regulated article shall be taken into account in the conduct of risk assessment;

5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted as indicating a
particular level of risk, an absence of risk, or an acceptable risk;

5.2.1.3 The identified characteristics of a regulated article and its use which have the potential to
pose significant risks to human health and the environment shall be compared to those
presented by the non-modified organism from which it is derived and its use under the same
conditions;

5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event. The
required information may vary in nature and level of detail from case to case depending on
the regulated article concerned, its intended use and the receiving environment; and,

5.2.1.5 If new information on the regulated article and its effects on human health and the
environment becomes available, and such information is relevant and significant, the RA shall
be readdressed to determine whether the risk has changed or whether there is a need to
amend the risk management strategies accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies shall be
in accordance with the policies and standards on RA issued by the NCBP. Annex III of the Cartagena
Protocol shall also guide RA. As appropriate, such department and agencies may issue their own
respective administrative issuances establishing the appropriate RA under their particular jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety
decisions shall be determined by concerned departments and agencies subject to the requirements of
law and the standards set by the NCBP. Where applicable and under the coordination of the NCBP,
concerned departments and agencies shall issue joint guidelines on the matter. (Emphasis supplied)

411
Considering the above minimum requirements under the most comprehensive national biosafety
regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient. Notably, Section 7
of the NBF mandates a more transparent, meaningful and participatory public consultation on the conduct
of field trials beyond the posting and publication of notices and information sheets, consultations with
some residents and government officials, and submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety policies,
guidelines and measures and in making biosafety decisions, shall promote, facilitate, and conduct public
awareness, education, meaningful, responsible and accountable participation. They shall incorporate into
their respective administrative issuances and processes best practices and mechanisms on public
participation in accordance with the following guidelines:chanRoblesvirtualLawlibrary

7.1 Scope of Public Participation. - Public participation shall apply to all stages of the biosafety decision-
making process from the time the application is received. For applications on biotechnology activities
related to research and development, limited primarily for contained use, notice of the filing of such
application with the NCBP shall be sufficient, unless the NCBP deems that public interest and welfare
requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public participation processes, the
following minimum requirements shall be followed:chanRoblesvirtualLawlibrary

7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to which
they have access. Such notice must be adequate, timely, and effective and posted prominently in public
places in the areas affected, and in the case of commercial releases, in the national print media; in all
cases, such notices must be posted electronically in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures should
allow relevant stakeholders to understand and analyze the benefits and risks, consult with independent
experts, and make timely interventions. Concerned departments and agencies shall include in their
appropriate rules and regulations specific time frames for their respective public participation processes,
including setting a minimum time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These
could include formal hearings in certain cases, or solicitation of public comments, particularly where there
is public controversy about the proposed activities. Public consultations shall encourage exchanges of
information between applicants and the public before the application is acted upon. Dialogue and
consensus-building among all stakeholders shall be encouraged. Concerned departments and agencies
shall specify in their appropriate rules and regulations the stages when public consultations are
appropriate, the specific time frames for such consultations, and the circumstances when formal hearings
will be required, including guidelines to ensure orderly proceedings. The networks of agricultural and
fisheries councils, indigenous peoples and community-based organizations in affected areas shall be
utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow public
participation in writing or through public hearings, as appropriate, and which allow the submission of
any positions, comments, information, analyses or opinions. Concerned departments and agencies shall
include in their appropriate rules and regulations the stages when and the process to be followed for

412
submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation and submission
of written comments. Public concerns as reflected through the procedures for public participation shall
be considered in making the decision. The public shall be informed of the final decision promptly, have
access to the decision, and shall be provided with the reasons and considerations resulting in the decision,
upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort
was made to operationalize the principles of the NBF in the conduct of field testing of Bt talong. The failure
of DAO 08-2002 to accommodate the NBF means that the Department of Agriculture lacks mechanisms
to mandate applicants to comply with international biosafety protocols. Greenpeace's claim that BPI had
approved nearly all of the applications for GMO field trials is confirmed by the data posted on their
website. For these reasons, the DAO 08-2002 should be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials are not covered by the EIS
law, EO 514 clearly mandates that concerned departments and agencies, most particularly petitioners
DENR-EMB, BPI and FPA, make a determination whether the EIS system should apply to the release of
GMOs into the environment and issue joint guidelines on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect impacts of
a project on the biophysical and human environment and ensuring that these impacts are addressed by
appropriate environmental protection and enhancement measures. It "aids proponents in incorporating
environmental considerations in planning their projects as well as in determining the environment's
impact on their project." There are six stages in the regular EIA process. The proponent initiates the first
three stages while the EMB takes the lead in the last three stages. Public participation is enlisted in most
stages.136

Even without the issuance of EO 514, GMO field testing should have at least been considered for EIA under
existing regulations of petitioner EMB on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups, e.g. projects
using new processes/technologies with uncertain impacts. This is an interim category - unclassified
projects will eventually be classified into their appropriate groups after EMB evaluation.137 (Emphasis
supplied)
All government agencies as well as private corporations, firms and entities who intend to undertake
activities or projects which will affect the quality of the environment are required to prepare a detailed
Environmental Impact Statement (EIS) prior to undertaking such development activity.138 An
environmentally critical project (ECP) is considered by the EMB as "likely to have significant adverse
impact that may be sensitive, irreversible and diverse" and which "include activities that have significant
environmental consequences."139 In this context, and given the overwhelming scientific attention
worldwide on the potential hazards of GMOs to human health and the environment, their release into
the environment through field testing would definitely fall under the category of ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on whether his
office undertook the necessary evaluation on the possible environmental impact of Bt talong field trials
subject of this case and the release of GMOs into the environment in general. While he initially cited lack
of budget and competence as reasons for their inaction, he later said that an amendment of the law

413
should be made since projects involving GMOs are not covered by Proclamation No. 2146 140. Pertinent
portions of his testimony before the CA are herein quoted:
x x x x

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law.
Granting Mr. Witness that a certain project or undertaking is not classified as environmentally critical
project, how would you know that the BT talong field testing is not located in an environmentally critical
area this time?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Objection Your Honor, argumentative.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Witness may answer.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the Petition,
petitioners never alleged that the project, the subject matter rather of this instant petition, is within an
environmentally critical project.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Your Honor the Witness did not answer the question.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Please answer the question.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Personally I have conferred with our personnel from the Environmental Impact Assessment Division and
they intimated to me that the locations of the project, rather of this subject matter of the instant petition,
not within any declared environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

In other words, you are aware of the area where the BT Talong experiments are being conducted. Is that
the premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Judging from previous discussions we had . . . judging from the Petition, and showing it to the as I said
personnel from Environmental Impact Division at our office, as I said they intimated to me that it's not

414
within declared environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

That being the case, you did not act further? [You] did not make any further evaluation, on whether the
activity has an environmental impact? Is that the correct premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal aspects
of the Bureau's affairs. But when it comes to highly technical matters, I have to rely on our technical
people especially on environmentally impact assessment matters.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness
coordinate with your Office with regard the field testing of BT Talong?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with regard
the field testing of BT Talong as required under the law?

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Already answered your Honor, objection.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

The witness in effect said he does not know, he's not in a position to answer.

x x x x

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet
received any project with respect to that Your Honor. So the witness would not be in a position to answer
that Your Honors.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

415
Lay the basis first.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up
question is specifically Your Honor the BT talong field testing.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Unclassified?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As the section will initially provide. But there must be prior ... may I continue to harp on that Your Honors.
There must be prior ... let's say conditions ... there must be prior evaluation and assessment just the same
by the EMB.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Prior to what Mr. Witness?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Yes please.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent
evaluation or assessment of the matter to see if we also have the resources and expertise if it can be
finally unclassified. I should say should fall within the fairview of the system, the EIA system. In other
words, it's in a sort of how do you say that it's in a state of limbo. So it's unclassified, that's the most we

416
can do in the meantime.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the projects
such as this one in particular?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, Your Honors as of now.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So therefore, when you say initially it's unclassified and then you're saying afterwards the EMB needs
evaluation but then you're saying the EMB is without any capability to evaluate then what happens?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's how
we interpret it. But the truth of the matter is with all pragmatism we don't have the resources as of
now and expertise to do just that.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So in other words you admit that the EMB is without any competence to make a categorical or initial
examination of this uncategorized activity, is that what you mean?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It would appear, yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of the
parties concerned.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So that means you are waiting for a request? Are you not? Proactive in this activity in performing your
obligations and duties?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for the

417
environment is hardly ... the ratio is ... if we want to protect indeed the environment as we profess,
with all due respect if Congress speaks otherwise.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial
Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters related to environmental
management, conservation and pollution control, right?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental Critical
Areas of Projects and more specifically focused on Proclamation No. 2146. With respect to this BT Talong,
you mentioned that this is at first is uncategorized, it's not within?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

But you did mention that under the rules and regulations, even in an uncategorized activity, pertaining to
the environment, your Office has the mandate and then you later say that your Office is without
competence, do I follow your line of standing?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now within
Proclamation 2146.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Yes, but under the implementing rules your Office has the mandate to act on other unclassified activities
and you answered that your Office has no competence.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the
Secretary of DENR. We need an amendment of 2146.141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack of
serious attention to their mandate under the law in the implementation of the NBF, as provided in the
following sections of EO 514:

418
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary government
agency responsible for the conservation, management, development and proper use of the country's
environment and natural resources, the Department of Environment and Natural Resources (DENR) shall
ensure that environmental assessments are done and impacts identified in biosafety decisions. It shall
also take the lead in evaluating and monitoring regulated articles intended for bioremediation, the
improvement of forest genetic resources, and wildlife genetic resources.

x x x x

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point
responsible for liaison with the Secretariat shall be the Department of Foreign Affairs. The competent
national authorities, responsible for performing the administrative functions required by the Protocol,
shall be, depending on the particular genetically modified organisms in question, the
following:chanRoblesvirtualLawlibrary

x x x x

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered by the
Protocol that concern regulated organisms intended for bioremediation, the improvement of forest
genetic resources, and wildlife genetic resources, and applications of modern biotechnology with
potential impact on the conservation and sustainable use of biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned
agencies to ensure that there will be funding for the implementation of the NBF as it was intended to be
a multi-disciplinary effort involving the different government departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets to
implement the NBF, including support to the operations of the NCBP and its Secretariat. Starting 2006 and
thereafter, the funding requirements shall be included in the General Appropriations Bill submitted by
each of said departments to Congress.

These concerned departments shall enter into agreement on the sharing of financial and technical
resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation of
the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that
governments are obligated to "foresee and forestall" harm to the environment. In the following decades,
the precautionary principle has served as the normative guideline for policymaking by many national
governments.142 The Rio Declaration on Environment and Development, the outcome of the 1992 United
Nations Conference on Environment and Development held in Rio de Janeiro, defines the rights of the
people to be involved in the development of their economies, and the responsibilities of human beings to
safeguard the common environment. It states that the long term economic progress is only ensured if it
is linked with the protection of the environment.143 For the first time, the precautionary approach was
codified under Principle 15, which reads:

419
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which indicates that
lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm
to the environment. It has been incorporated in various international legal instruments.144 The Cartagena
Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on
January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs
intended for release into the environment, in accordance with Principle 15 of the Rio Declaration on
Environment and Development. The Protocol thus provides:
Article

10

DECISION PROCEDURE

x x x x

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding
the extent of the potential adverse effects of a living modified organism on the conservation and
sustainable use of biological diversity in the Party of import, taking also into account risks to human health,
shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living
modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such
potential adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding
the extent of the potential adverse effects of a living modified organism on the conservation and
sustainable use of biological diversity in the Party of import, taking also into account risks to human health,
shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living
modified organism intended for direct use as food or feed, or for processing, in order to avoid or minimize
such potential adverse effects.

xxxx

420
Annex III

RISK ASSESSMENT

General principles

x x x x

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating
a particular level of risk, an absence of risk, or an acceptable risk.

The precautionary principle applies when the following conditions are met145:

 there exist considerable scientific uncertainties;

 there exist scenarios (or models) of possible harm that are scientifically reasonable (that
is based on some scientifically plausible reasoning);

 uncertainties cannot be reduced in the short term without at the same time increasing
ignorance of other relevant factors by higher levels of abstraction and idealization;

 the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;

 there is a need to act now, since effective counteraction later will be made significantly
more difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link between
human activity and environmental effect, the court shall apply the precautionary principle in resolving the
case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the
doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following factors, among
others, may be considered: (1) threats to human life or health; (2) inequity to present or future
generations; or (3) prejudice to the environment without legal consideration of the environmental rights
of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases
before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual
findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts
as warranting either judicial action or inaction, with the goal of preserving and protecting the
environment. This may be further evinced from the second paragraph where bias is created in favor of
the constitutional right of the people to a balanced and healthful ecology. In effect, the precautionary
principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those

421
desiring to change the status quo. An application of the precautionary principle to the rules on evidence
will enable courts to tackle future environmental problems before ironclad scientific consensus
emerges.146

For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where
application of the regular Rules of Evidence would cause in an inequitable result for the environmental
plaintiff

— (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible
and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious.
When these features

— uncertainty, the possibility of irreversible harm, and the possibility of serious harm — coincide, the
case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the
strongest fora in which the precautionary principle may find applicability.147

Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court finds
all the three conditions present in this case - uncertainty, the possibility of irreversible harm and the
possibility of serious harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers, majority of
whom are poor and marginalized. While the goal of increasing crop yields to raise farm incomes is
laudable, independent scientific studies revealed uncertainties due to unfulfilled economic benefits
from Bt crops and plants, adverse effects on the environment associated with use of GE technology in
agriculture, and serious health hazards from consumption of GM foods. For a biodiversity-rich country like
the Philippines, the natural and unforeseen consequences of contamination and genetic pollution would
be disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of risk
assessment and public consultation, including the determination of the applicability of the EIS
requirements to GMO field testing, are compelling reasons for the application of the precautionary
principle. There exists a preponderance of evidence that the release of GMOs into the
environment threatens to damage our ecosystems and not just the field trial sites, and eventually the
health of our people once the Bt eggplants are consumed as food. Adopting the precautionary approach,
the Court rules that the principles of the NBF need to be operationalized first by the coordinated actions
of the concerned departments and agencies before allowing the release into the environment of
genetically modified eggplant. The more prudent course is to immediately enjoin the Bt talong field trials
and approval for its propagation or commercialization until the said government offices shall have
performed their respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an indefinite moratorium
was recommended by a Supreme Court-appointed committee till the government fixes regulatory and
safety aspects - as relevant because majority of Filipino farmers are also small-scale farmers. Further, the
precautionary approach entailed inputs from all stakeholders, including the marginalized farmers, not just
the scientific community. This proceeds from the realization that acceptance of uncertainty is not only a
scientific issue, but is related to public policy and involves an ethical dimension.148 For scientific research
alone will not resolve all the problems, but participation of different stakeholders from scientists to

422
industry, NGOs, farmers and the public will provide a needed variety of perspective foci, and
knowledge.149

Finally, while the drafters of the NBF saw the need for a law to specifically address the concern for
biosafety arising from the use of modern biotechnology, which is deemed necessary to provide more
permanent rules, institutions, and funding to adequately deal with this challenge,150 the matter is within
the exclusive prerogative of the legislative branch.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of Appeals in CA-
G.R. SP No. 00013 is hereby MODIFIED, as follows:chanRoblesvirtualLawlibrary

1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;

2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL AND VOID; and

3. Consequently, any application for contained use, field testing, propagation and commercialization, and
importation of genetically modified organisms is TEMPORARILY ENJOINED until a new administrative
order is promulgated in accordance with law.

No pronouncement as to costs.

SO ORDERED.chanroblesvirtuallawlibrary

Separation of Powers

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE and
QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE
PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S.
BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

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

423
G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -

Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT
OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail
the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court
shall heretofore discuss the system‘s conceptual underpinnings before detailing the particulars of the
constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be traced
to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves who
would cast their famished bodies into the porcine feast to assuage their hunger with morsels
coming from the generosity of their well-fed master.4 This practice was later compared to the
actions of American legislators in trying to direct federal budgets in favor of their districts.5 While
the advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to
political bills that "bring home the bacon" to a legislator‘s district and constituents.6 In a more
technical sense, "Pork Barrel" refers to an appropriation of government spending meant for
localized projects and secured solely or primarily to bring money to a representative's
district.7 Some scholars on the subject further use it to refer to legislative control of local
appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds
of Members of the Legislature,9 although, as will be later discussed, its usage would evolve in
reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds

424
 appropriated therein were subjected to post-enactment legislator approval. Particularly,
in the area of fund release, Section 312 provides that the sums appropriated for certain
public works projects13"shall be distributed x x x subject to the approval of a joint
committee elected by the Senate and the House of Representatives. "The committee
from each House may also authorize one of its members to approve the distribution made
by the Secretary of Commerce and Communications."14 Also, in the area of fund
realignment, the same section provides that the said secretary, "with the approval of said
joint committee, or of the authorized members thereof, may, for the purposes of said
distribution, transfer unexpended portions of any item of appropriation under this Act to
any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary of
Commerce and Communications to legislators. "For the first time, the law carried a list of
projects selected by Members of Congress, they ‘being the representatives of the people,
either on their own account or by consultation with local officials or civil
leaders.‘"16 During this period, the pork barrel process commenced with local government
councils, civil groups, and individuals appealing to Congressmen or Senators for projects.
Petitions that were accommodated formed part of a legislator‘s allocation, and the
amount each legislator would eventually get is determined in a caucus convened by the
majority. The amount was then integrated into the administration bill prepared by the
Department of Public Works and Communications. Thereafter, the Senate and the House
of Representatives added their own provisions to the bill until it was signed into law by
the President – the Public Works Act.17 In the 1960‘s, however, pork barrel legislation
reportedly ceased in view of the stalemate between the House of Representatives and
the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature,"19 the
reprieve was only temporary. By 1982, the Batasang Pambansa had already introduced a
new item in the General Appropriations Act (GAA) called the" Support for Local
Development Projects" (SLDP) under the article on "National Aid to Local Government
Units". Based on reports,20 it was under the SLDP that the practice of giving lump-sum
allocations to individual legislators began, with each assemblyman receiving P500,000.00.
Thereafter, assemblymen would communicate their project preferences to the Ministry
of Budget and Management for approval. Then, the said ministry would release the
allocation papers to the Ministry of Local Governments, which would, in turn, issue the
checks to the city or municipal treasurers in the assemblyman‘s locality. It has been
further reported that "Congressional Pork Barrel" projects under the SLDP also began to
cover not only public works projects, or so- called "hard projects", but also "soft
projects",21 or non-public works projects such as those which would fall under the
categories of, among others, education, health and livelihood.22

C. Post-Martial Law Era:

425
 Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with lump-
sum appropriations of P480 Million and P240 Million, respectively, for the funding of
development projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the Luzon legislators for a
similar funding, prompted the creation of the "Countrywide Development Fund" (CDF)
which was integrated into the 1990 GAA24 with an initial funding of P2.3 Billion to cover
"small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990 to
1992 were silent as to the amounts of allocations of the individual legislators, as well as
their participation in the identification of projects, it has been reported26 that by 1992,
Representatives were receiving P12.5 Million each in CDF funds, while Senators were
receiving P18 Million each, without any limitation or qualification, and that they could
identify any kind of project, from hard or infrastructure projects such as roads, bridges,
and buildings to "soft projects" such as textbooks, medicines, and scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds
was to be made upon the submission of the list of projects and activities identified by,
among others, individual legislators. For the first time, the 1993 CDF Article included an
allocation for the Vice-President.29 As such, Representatives were allocated P12.5 Million
each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however, the
Department of Budget and Management (DBM) was directed to submit reports to the
Senate Committee on Finance and the House Committee on Appropriations on the
releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations which
shall be duly endorsed by (a) the Senate President and the Chairman of the Committee
on Finance, in the case of the Senate, and (b) the Speaker of the House of Representatives
and the Chairman of the Committee on Appropriations, in the case of the House of
Representatives; while the list for the remaining 50% was to be submitted within six (6)
months thereafter. The same article also stated that the project list, which would be
published by the DBM,35 "shall be the basis for the release of funds" and that "no funds
appropriated herein shall be disbursed for projects not included in the list herein
required."

426
 The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no
longer required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time.
Other forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into
the GAA (called "Congressional Insertions" or "CIs") in order to perpetuate the ad
ministration‘s political agenda.37 It has been articulated that since CIs "formed part and
parcel of the budgets of executive departments, they were not easily identifiable and
were thus harder to monitor." Nonetheless, the lawmakers themselves as well as the
finance and budget officials of the implementing agencies, as well as the DBM,
purportedly knew about the insertions.38Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional Initiative Allocations, the
Public Works Fund, the El Niño Fund, and the Poverty Alleviation Fund.39 The allocations
for the School Building Fund, particularly, ―shall be made upon prior consultation with
the representative of the legislative district concerned.”40 Similarly, the legislators had the
power to direct how, where and when these appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of
CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which
contained a special provision requiring "prior consultation" with the Member s of
Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article. Moreover,
realignment of funds to any expense category was expressly allowed, with the sole
condition that no amount shall be used to fund personal services and other personnel
benefits.47 The succeeding PDAF provisions remained the same in view of the re-
enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing agency or
local government unit concerned, without further qualifications. The following year,
2003,50 the same single provision was present, with simply an expansion of purpose and
express authority to realign. Nevertheless, the provisions in the 2003 budgets of the
Department of Public Works and Highways51 (DPWH) and the DepEd52 required prior
consultation with Members of Congress on the aspects of implementation delegation and
project list submission, respectively. In 2004, the 2003 GAA was re-enacted.53

427
 In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and shall
be released directly to the implementing agencies." It also introduced the program menu
concept,55 which is essentially a list of general programs and implementing agencies from
which a particular PDAF project may be subsequently chosen by the identifying authority.
The 2005 GAA was re-enacted56 in 2006 and hence, operated on the same bases. In similar
regard, the program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the
proposal and identification of PDAF projects to be funded. In contrast to the PDAF Articles,
however, the provisions under the DepEd School Building Program and the DPWH budget,
similar to its predecessors, explicitly required prior consultation with the concerned
Member of Congress61anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of
non-governmental organizations (NGO) in the implementation of government projects
were introduced. In the Supplemental Budget for 2006, with respect to the appropriation
for school buildings, NGOs were, by law, encouraged to participate. For such purpose, the
law stated that "the amount of at least P250 Million of the P500 Million allotted for the
construction and completion of school buildings shall be made available to NGOs
including the Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for
its "Operation Barrio School" program, with capability and proven track records in the
construction of public school buildings x x x."62 The same allocation was made available
to NGOs in the 2007 and 2009 GAAs under the DepEd Budget.63 Also, it was in 2007 that
the Government Procurement Policy Board64(GPPB) issued Resolution No. 12-2007 dated
June 29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and
regulations65 of RA 9184,66 the Government Procurement Reform Act, to include, as a
form of negotiated procurement,67 the procedure whereby the Procuring Entity68 (the
implementing agency) may enter into a memorandum of agreement with an NGO,
provided that "an appropriation law or ordinance earmarks an amount to be specifically
contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF
Article included an express statement on lump-sum amounts allocated for individual
legislators and the Vice-President: Representatives were given P70 Million each, broken
down into P40 Million for "hard projects" and P30 Million for "soft projects"; while P200
Million was given to each Senator as well as the Vice-President, with a P100 Million
allocation each for "hard" and "soft projects." Likewise, a provision on realignment of
funds was included, but with the qualification that it may be allowed only once. The same
provision also allowed the Secretaries of Education, Health, Social Welfare and
Development, Interior and Local Government, Environment and Natural Resources,
Energy, and Public Works and Highways to realign PDAF Funds, with the further
conditions that: (a) realignment is within the same implementing unit and same project
category as the original project, for infrastructure projects; (b) allotment released has not

428
 yet been obligated for the original scope of work, and (c) the request for realignment is
with the concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or design
prepared by each implementing agency (priority list requirement) x x x." However, as
practiced, it would still be the individual legislator who would choose and identify the
project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the

2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged
at P200 Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article
now allowed LGUs to be identified as implementing agencies if they have the technical
capability to implement the projects.77 Legislators were also allowed to identify
programs/projects, except for assistance to indigent patients and scholarships, outside of
his legislative district provided that he secures the written concurrence of the legislator
of the intended outside-district, endorsed by the Speaker of the House.78 Finally, any
realignment of PDAF funds, modification and revision of project identification, as well as
requests for release of funds, were all required to be favorably endorsed by the House
Committee on Appropriations and the Senate Committee on Finance, as the case may
be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of
Members of Congress, the present cases and the recent controversies on the matter have,
however, shown that the term‘s usage has expanded to include certain funds of the President
such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on
March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special fund to
help intensify, strengthen, and consolidate government efforts relating to the exploration,
exploitation, and development of indigenous energy resources vital to economic growth.82 Due to
the energy-related activities of the government in the Malampaya natural gas field in Palawan, or
the "Malampaya Deep Water Gas-to-Power Project",83 the special fund created under PD 910 has
been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of PD
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869
was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he amended PD
1869 and accordingly issued PD 1993 on October 31, 1985,86 amending Section 1287 of the former
law. As it stands, the Presidential Social Fund has been described as a special funding facility
managed and administered by the Presidential Management Staff through which the President
provides direct assistance to priority programs and projects not funded under the regular budget.
It is sourced from the share of the government in the aggregate gross earnings of PAGCOR.88

429
IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel"
erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an anonymous
source, "blew the lid on the huge sums of government money that regularly went into the pockets
of legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘ (standard
operating procedure) among legislators and ranged from a low 19 percent to a high 52 percent of
the cost of each project, which could be anything from dredging, rip rapping, sphalting,
concreting, and construction of school buildings."92 "Other sources of kickbacks that Candazo
identified were public funds intended for medicines and textbooks. A few days later, the tale of
the money trail became the banner story of the Philippine Daily Inquirer issue of August 13, 1996,
accompanied by an illustration of a roasted pig."93 "The publication of the stories, including those
about congressional initiative allocations of certain lawmakers, including P3.6 Billion for a
Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted
in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary
support that illegal misuse of PDAF in the form of kickbacks has become a common exercise of
unscrupulous Members of Congress," the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe
into allegations that "the government has been defrauded of some P10 Billion over the past 10
years by a syndicate using funds from the pork barrel of lawmakers and various government
agencies for scores of ghost projects."96 The investigation was spawned by sworn affidavits of six
(6) whistle-blowers who declared that JLN Corporation – "JLN" standing for Janet Lim Napoles
(Napoles) – had swindled billions of pesos from the public coffers for "ghost projects" using no
fewer than 20 dummy NGOs for an entire decade. While the NGOs were supposedly the ultimate
recipients of PDAF funds, the whistle-blowers declared that the money was diverted into Napoles‘
private accounts.97 Thus, after its investigation on the Napoles controversy, criminal complaints
were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder, and
three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and
Corrupt Practices Act. Also recommended to be charged in the complaints are some of the
lawmakers‘ chiefs -of-staff or representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs set up by Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the last three
(3) years of the Arroyo administration. The purpose of the audit was to determine the propriety
of releases of funds under PDAF and the Various Infrastructures including Local Projects
(VILP)100 by the DBM, the application of these funds and the implementation of projects by the
appropriate implementing agencies and several government-owned-and-controlled corporations
(GOCCs).101 The total releases covered by the audit amounted to P8.374 Billion in PDAF
and P32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit period.102 Accordingly,
the Co A‘s findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority

430
 Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP),"
were made public, the highlights of which are as follows:103

● Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring

members of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated under the
2007 to 2009 GAAs.

● Infrastructure projects were constructed on private lots without these having been
turned over to the government.

● Significant amounts were released to implementing agencies without the latter‘s

endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the implementing

agencies themselves but by NGOs endorsed by the proponent legislators to which the
Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any appropriation
law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two
(772) projects amount to P6.156 Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole or in part their
utilization of the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of goods and

services reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles controversy,
several petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be

431
 declared unconstitutional. To recount, the relevant procedural antecedents in these cases are as
follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society,
filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition),
seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective
capacities as the incumbent Senate President and Speaker of the House of Representatives, from further
taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever form
and by whatever name it may be called, and from approving further releases pursuant thereto.106 The
Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M. Abante,
Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For
Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica
Petition), seeking that the annual "Pork Barrel System," presently embodied in the provisions of the GAA
of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum, discretionary funds, such as
the Malampaya Funds and the Presidential Social Fund,107 be declared unconstitutional and null and void
for being acts constituting grave abuse of discretion. Also, they pray that the Court issue a TRO against
respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their
respective capacities as the incumbent Executive Secretary, Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their agents, for them to immediately cease any
expenditure under the aforesaid funds. Further, they pray that the Court order the foregoing respondents
to release to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of
their PDAF and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity
and the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s
lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities
or individuals, and all pertinent data thereto."108 Also, they pray for the "inclusion in budgetary
deliberations with the Congress of all presently off-budget, lump-sum, discretionary funds including, but
not limited to, proceeds from the Malampaya Funds and remittances from the PAGCOR."109 The Belgica
Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated
August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease
and desist order be issued restraining President Benigno Simeon S. Aquino III (President Aquino) and
Secretary Abad from releasing such funds to Members of Congress and, instead, allow their release to
fund priority projects identified and approved by the Local Development Councils in consultation with the
executive departments, such as the DPWH, the Department of Tourism, the Department of Health, the
Department of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b) requiring
public respondents to comment on the consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO)
enjoining the DBM, National Treasurer, the Executive Secretary, or any of the persons acting under their
authority from releasing (1) the remaining PDAF allocated to Members of Congress under the GAA of
2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be hereafter directed

432
by the President" pursuant to Section 8 of PD 910 but not for the purpose of "financing energy resource
development and exploitation programs and projects of the government‖ under the same provision; and
(d) setting the consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting with
respect to educational and medical assistance purposes, of the Court‘s September 10, 2013 TRO, and that
the consolidated petitions be dismissed for lack of merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the
Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October
2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues
material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments representative/s from the DBM and Congress who
would be able to competently and completely answer questions related to, among others, the budgeting
process and its implementation. Further, the CoA Chairperson was appointed as amicus curiae and
thereby requested to appear before the Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17, 2013,
which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for
the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to judicial
review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated August 19, 1994 in
G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution Association v.
Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against
Monopoly and Poverty v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the
issue of constitutionality of the "Pork Barrel System" under the principles of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

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Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a) separation
of powers; (b) non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political
dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the priority
infrastructure development projects and to finance the restoration of damaged or destroyed facilities due
to calamities, as may be directed and authorized by the Office of the President of the Philippines" under
Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are
unconstitutional insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court shall
also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity
of a law or governmental act may be heard and decided by the Court unless there is compliance with the
legal requisites for judicial inquiry,117 namely: (a) there must be an actual case or controversy calling for
the exercise of judicial power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity ; and (d) the issue of constitutionality must be the very lis mota of the case.118 Of these
requisites, case law states that the first two are the most important119 and, therefore, shall be discussed
forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This is
embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one which
"involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there must be
a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."122 Related to the requirement of an actual case or controversy is the requirement of
"ripeness," meaning that the questions raised for constitutional scrutiny are already ripe for adjudication.
"A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must allege the existence of
an immediate or threatened injury to itself as a result of the challenged action."123 "Withal, courts will

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decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to
resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in these
cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties
on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are
ripe for adjudication since the challenged funds and the provisions allowing for their utilization – such as
the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for
the Presidential Social Fund – are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot
and academic by the reforms undertaken by respondents. A case becomes moot when there is no more
actual controversy between the parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that respondents‘ proposed line-item
budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution
since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct
subject matter, remains legally effective and existing. Neither will the President‘s declaration that he had
already "abolished the PDAF" render the issues on PDAF moot precisely because the Executive branch of
government has no constitutional authority to nullify or annul its legal existence. By constitutional design,
the annulment or nullification of a law may be done either by Congress, through the passage of a repealing
law, or by the Court, through a declaration of unconstitutionality. Instructive on this point is the following
exchange between Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during
the Oral Arguments:126

Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor General
Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF,
the President has a duty to execute the laws but in the face of the outrage over PDAF, the President was
saying, "I am not sure that I will continue the release of the soft projects," and that started, Your Honor.
Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to
stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the
Revised Administrative Code128 x x x. So at most the President can suspend, now if the President believes
that the PDAF is unconstitutional, can he just refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF
because of the CoA Report, because of the reported irregularities and this Court can take judicial notice,
even outside, outside of the COA Report, you have the report of the whistle-blowers, the President was
just exercising precisely the duty ….

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xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you stop and
investigate, and prosecute, he has done that. But, does that mean that PDAF has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to repeal
it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and academic‘
principle is not a magical formula that can automatically dissuade the Court in resolving a case." The Court
will decide cases, otherwise moot, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and
the public; and fourth, the case is capable of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners – they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and local
autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved

– the constitutionality of the very system within which significant amounts of public funds have been and
continue to be utilized and expended undoubtedly presents a situation of exceptional character as well
as a matter of paramount public interest. The present petitions, in fact, have been lodged at a time when
the system‘s flaws have never before been magnified. To the Court‘s mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the government‘s own recognition that reforms
are needed "to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse
which only underscores the importance of the matter. It is also by this finding that the Court finds
petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is the weight accorded
by the Court to the findings made by the CoA which is the constitutionally-mandated audit arm of the
government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoA‘s disallowance of
irregularly disbursed PDAF funds, it was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary,
excessive, extravagant or unconscionable expenditures of government funds. It is tasked to be vigilant
and conscientious in safeguarding the proper use of the government's, and ultimately the people's,
property. The exercise of its general audit power is among the constitutional mechanisms that gives life
to the check and balance system inherent in our form of government.

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It is the general policy of the Court to sustain the decisions of administrative authorities, especially one
which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of
powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the decision and order are
not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only
when the CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. x x x.
(Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these
cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a definitive
ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson
estimates that thousands of notices of disallowances will be issued by her office in connection with the
findings made in the CoA Report. In this relation, Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) pointed out that all of these would eventually find their way to the courts.132 Accordingly, there
is a compelling need to formulate controlling principles relative to the issues raised herein in order to
guide the bench, the bar, and the public, not just for the expeditious resolution of the anticipated
disallowance cases, but more importantly, so that the government may be guided on how public funds
should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course
of history, lends a semblance of truth to petitioners‘ claim that "the same dog will just resurface wearing
a different collar."135 In Sanlakas v. Executive Secretary,136 the government had already backtracked on a
previous course of action yet the Court used the "capable of repetition but evading review" exception in
order "to prevent similar questions from re- emerging."137The situation similarly holds true to these cases.
Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not resolved
at this most opportune time, are capable of repetition and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the assurance
that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question doctrine
which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department," "a
lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of deciding
without an initial policy determination of a kind clearly for non- judicial discretion." Cast against this light,
respondents submit that the "the political branches are in the best position not only to perform budget-
related reforms but also to do them in response to the specific demands of their constituents" and, as
such, "urge the Court not to impose a solution at this stage."140

The Court must deny respondents‘ submission.

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Suffice it to state that the issues raised before the Court do not present political but legal questions which
are within its province to resolve. A political question refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom, not legality, of a particular measure."141 The
intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the
political branches of government but rather a legal one which the Constitution itself has commanded the
Court to act upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an exercise of judicial
power. More importantly, the present Constitution has not only vested the Judiciary the right to exercise
judicial power but essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987
Constitution cannot be any clearer: "The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. It 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." In Estrada v. Desierto,142 the expanded concept of
judicial power under the 1987 Constitution and its effect on the political question doctrine was explained
as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when
it expanded the power of judicial review of this court not only to settle actual controversies involving
rights which are legally demandable and enforceable but also 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 government. Heretofore, the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are
given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the
new provision did not just grant the Court power of doing nothing. x x x (Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; does not in reality nullify or invalidate an
act of the legislature or the executive, but only asserts the solemn and sacred obligation assigned to it by
the Constitution."144 To a great extent, the Court is laudably cognizant of the reforms undertaken by its
co-equal branches of government. But it is by constitutional force that the Court must faithfully perform
its duty. Ultimately, it is the Court‘s avowed intention that a resolution of these cases would not arrest or
in any manner impede the endeavors of the two other branches but, in fact, help ensure that the pillars
of change are erected on firm constitutional grounds. After all, it is in the best interest of the people that
each great branch of government, within its own sphere, contributes its share towards achieving a holistic
and genuine solution to the problems of society. For all these reasons, the Court cannot heed
respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions. Unless a person is injuriously
affected in any of his constitutional rights by the operation of statute or ordinance, he has no standing."145

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Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly,
assert that they "dutifully contribute to the coffers of the National Treasury."146 Clearly, as taxpayers, they
possess the requisite standing to question the validity of the existing "Pork Barrel System" under which
the taxes they pay have been and continue to be utilized. It is undeniable that petitioners, as taxpayers,
are bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably,
taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that
public money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues
they have raised may be classified as matters "of transcendental importance, of overreaching significance
to society, or of paramount public interest."148 The CoA Chairperson‘s statement during the Oral
Arguments that the present controversy involves "not merely a systems failure" but a "complete
breakdown of controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the
issues involved herein. Indeed, of greater import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare
decisis which means "follow past precedents and do not disturb what has been settled") are general
procedural law principles which both deal with the effects of previous but factually similar dispositions to
subsequent cases. For the cases at bar, the Court examines the applicability of these principles in relation
to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between
the first and second actions, there exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant hereto since Philconsa and LAMP, respectively
involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article, whereas the cases
at bar call for a broader constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP
is essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on the merits
– in that petitioners therein failed to present any "convincing proof x x x showing that, indeed, there were
direct releases of funds to the Members of Congress, who actually spend them according to their sole
discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of
kickbacks and has become a common exercise of unscrupulous Members of Congress." As such, the Court
up held, in view of the presumption of constitutionality accorded to every law, the 2004 PDAF Article, and
saw "no need to review or reverse the standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are concerned,
cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under
Article 8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a conclusion reached
in one case should be doctrinally applied to those that follow if the facts are substantially the same, even
though the parties may be different. It proceeds from the first principle of justice that, absent any
powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same
questions relating to the same event have been put forward by the parties similarly situated as in a

439
previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt
to re-litigate the same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the 1994
CDF Article, was resolved by the Court. To properly understand its context, petitioners‘ posturing was that
"the power given to the Members of Congress to propose and identify projects and activities to be funded
by the CDF is an encroachment by the legislature on executive power, since said power in an appropriation
act is in implementation of the law" and that "the proposal and identification of the projects do not involve
the making of laws or the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following main
conclusions: one, under the Constitution, the power of appropriation, or the "power of the purse,"
belongs to Congress; two, the power of appropriation carries with it the power to specify the project or
activity to be funded under the appropriation law and it can be detailed and as broad as Congress wants
it to be; and, three, the proposals and identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa resolution was a limited response to a
separation of powers problem, specifically on the propriety of conferring post-enactment identification
authority to Members of Congress. On the contrary, the present cases call for a more holistic examination
of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained within
a particular CDF or PDAF Article, including not only those related to the area of project identification but
also to the areas of fund release and realignment. The complexity of the issues and the broader legal
analyses herein warranted may be, therefore, considered as a powerful countervailing reason against a
wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional
inconsistencies which similarly countervail against a full resort to stare decisis. As may be deduced from
the main conclusions of the case, Philconsa‘s fundamental premise in allowing Members of Congress to
propose and identify of projects would be that the said identification authority is but an aspect of the
power of appropriation which has been constitutionally lodged in Congress. From this premise, the
contradictions may be easily seen. If the authority to identify projects is an aspect of appropriation and
the power of appropriation is a form of legislative power thereby lodged in Congress, then it follows that:
(a) it is Congress which should exercise such authority, and not its individual Members; (b) such authority
must be exercised within the prescribed procedure of law passage and, hence, should not be exercised
after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has the force of
law and, hence, cannot be merely recommendatory. Justice Vitug‘s Concurring Opinion in the same case
sums up the Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority, however, to the
individual members of Congress in whatever guise, I am afraid, would be constitutionally impermissible."
As the Court now largely benefits from hindsight and current findings on the matter, among others, the
CoA Report, the Court must partially abandon its previous ruling in Philconsa insofar as it validated the
post-enactment identification authority of Members of Congress on the guise that the same was merely
recommendatory. This postulate raises serious constitutional inconsistencies which cannot be simply
excused on the ground that such mechanism is "imaginative as it is innovative." Moreover, it must be
pointed out that the recent case of Abakada Guro Party List v. Purisima155 (Abakada) has effectively
overturned Philconsa‘s allowance of post-enactment legislator participation in view of the separation of
powers principle. These constitutional inconsistencies and the Abakada rule will be discussed in greater
detail in the ensuing section of this Decision.

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As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and, hence,
has not set any controlling doctrine susceptible of current application to the substantive issues in these
cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms
"Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to
the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive
branches of government to accumulate lump-sum public funds in their offices with unchecked
discretionary powers to determine its distribution as political largesse."156 They assert that the following
elements make up the Pork Barrel System: (a) lump-sum funds are allocated through the appropriations
process to an individual officer; (b) the officer is given sole and broad discretion in determining how the
funds will be used or expended; (c) the guidelines on how to spend or use the funds in the appropriation
are either vague, overbroad or inexistent; and (d) projects funded are intended to benefit a definite
constituency in a particular part of the country and to help the political careers of the disbursing official
by yielding rich patronage benefits.157 They further state that the Pork Barrel System is comprised of two
(2) kinds of discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known
as the PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds
under PD 910 and the Presidential Social Fund under PD 1869, as amended by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner by
which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its members.
The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or collectively organized into committees, are able to
effectively control certain aspects of the fund’s utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it appears under the 2013 GAA, as
Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows individual legislators
to wield a collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund which allows the President to determine the manner of its utilization. For reasons earlier
stated,161 the Court shall delimit the use of such term to refer only to the Malampaya Funds and the
Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these
cases.

B. Substantive Issues on the Congressional Pork Barrel.

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1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three fundamental
powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it
means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government."163 To the legislative branch
of government, through Congress,164 belongs the power to make laws; to the executive branch of
government, through the President,165belongs the power to enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power to interpret laws. Because the three great powers
have been, by constitutional design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere."167 Thus, "the
legislature has no authority to execute or construe the law, the executive has no authority to make or
construe the law, and the judiciary has no power to make or execute the law."168 The principle of
separation of powers and its concepts of autonomy and independence stem from the notion that the
powers of government must be divided to avoid concentration of these powers in any one branch; the
division, it is hoped, would avoid any single branch from lording its power over the other branches or the
citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal branches of
government that are equally capable of independent action in exercising their respective mandates. Lack
of independence would result in the inability of one branch of government to check the arbitrary or self-
interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that the
principle of separation of powers may be violated in two (2) ways: firstly, "one branch may interfere
impermissibly with the other’s performance of its constitutionally assigned function";171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly is
entrusted to another."172 In other words, there is a violation of the principle when there is impermissible
(a) interference with and/or (b) assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both
constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr.
v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution "covers the
various operational aspects of budgeting" and accordingly includes "the evaluation of work and financial
plans for individual activities," the "regulation and release of funds" as well as all "other related activities"
that comprise the budget execution cycle.174 This is rooted in the principle that the allocation of power in
the three principal branches of government is a grant of all powers inherent in them.175 Thus, unless the
Constitution provides otherwise, the Executive department should exclusively exercise all roles and
prerogatives which go into the implementation of the national budget as provided under the GAA as well
as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members, should
not cross over the field of implementing the national budget since, as earlier stated, the same is properly
the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture
when it deliberates or acts on the budget proposals of the President. Thereafter, Congress, "in the exercise
of its own judgment and wisdom, formulates an appropriation act precisely following the process
established by the Constitution, which specifies that no money may be paid from the Treasury except in

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accordance with an appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -
making role necessarily comes to an end and from there the Executive‘s role of implementing the national
budget begins. So as not to blur the constitutional boundaries between them, Congress must "not concern
it self with details for implementation by the Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may still
exercise its oversight function which is a mechanism of checks and balances that the Constitution itself
allows. But it must be made clear that Congress‘ role must be confined to mere oversight. Any post-
enactment-measure allowing legislator participation beyond oversight is bereft of any constitutional basis
and hence, tantamount to impermissible interference and/or assumption of executive functions. As the
Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and

investigation.1âwphi1 In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress
to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
(Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF
Article – "wrecks the assignment of responsibilities between the political branches" as it is designed to
allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after
the GAA is passed."179 They state that the findings and recommendations in the CoA Report provide "an
illustration of how absolute and definitive the power of legislators wield over project implementation in
complete violation of the constitutional principle of separation of powers."180 Further, they point out that
the Court in the Philconsa case only allowed the CDF to exist on the condition that individual legislators
limited their role to recommending projects and not if they actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated since
the President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains the
final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in Philconsa, "upheld
the constitutionality of the power of members of Congress to propose and identify projects so long as
such proposal and identification are recommendatory."183 As such, they claim that "everything in the

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Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel
would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187 –
have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory
authority of legislators to identify projects post-GAA may be construed from the import of Special
Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special Provision 1
embodies the program menu feature which, as evinced from past PDAF Articles, allows individual
legislators to identify PDAF projects for as long as the identified project falls under a general program
listed in the said menu. Relatedly, Special Provision 2 provides that the implementing agencies shall,
within 90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or design
prepared and submitted by implementing agencies from which the legislator may make his choice. The
same provision further authorizes legislators to identify PDAF projects outside his district for as long as
the representative of the district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies
that PDAF projects refer to "projects to be identified by legislators"188 and thereunder provides the
allocation limit for the total amount of projects identified by each legislator. Finally, paragraph 2 of Special
Provision 4 requires that any modification and revision of the project identification "shall be submitted to
the House Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be." From the foregoing special
provisions, it cannot be seriously doubted that legislators have been accorded post-enactment authority
to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House
Committee on Appropriations and the Senate Committee on Finance, as the case may be"; while their
statutory authority to participate in the area of fund realignment is contained in: first , paragraph 2,
Special Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be‖ ; and, second , paragraph 1,
also of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior
and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and
Development and Trade and Industry190 x x x to approve realignment from one project/scope to another
within the allotment received from this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund release and
fund realignment are not related to functions of congressional oversight and, hence, allow legislators to
intervene and/or assume duties that properly belong to the sphere of budget execution. Indeed, by virtue

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of the foregoing, legislators have been, in one form or another, authorized to participate in – as Guingona,
Jr. puts it – "the various operational aspects of budgeting," including "the evaluation of work and financial
plans for individual activities" and the "regulation and release of funds" in violation of the separation of
powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated –
from the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional.191 That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of the law. Towards this end, the Court must
therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the
guise that the same is merely recommendatory and, as such, respondents‘ reliance on the same falters
altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position
that the identification authority of legislators is only of recommendatory import. Quite the contrary,
respondents – through the statements of the Solicitor General during the Oral Arguments – have admitted
that the identification of the legislator constitutes a mandatory requirement before his PDAF can be
tapped as a funding source, thereby highlighting the indispensability of the said act to the entire budget
execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of the
legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented without the
identification by the individual legislator?

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Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I
would doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA. And
the SARO and the NCA are triggered by an identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question,
"How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he
must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the PDAF
Funds and his district would not be able to have PDAF Funds, only in that sense, Your Honor. (Emphases
supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through
which legislators have effectively intruded into the proper phases of budget execution, must be deemed
as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the
same unconstitutional treatment. That such informal practices do exist and have, in fact, been constantly
observed throughout the years has not been substantially disputed here. As pointed out by Chief Justice
Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we
enforces the initial thought that I have, after I had seen the extent of this research made by my staff, that
neither the Executive nor Congress frontally faced the question of constitutional compatibility of how they
were engineering the budget process. In fact, the words you have been using, as the three lawyers of the
DBM, and both Houses of Congress has also been using is surprise; surprised that all of these things are
now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all
the past practice that had been done since 1991. In a certain sense, we should be thankful that they are
all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures
written into the law or informal practices institutionalized in government agencies, else the Executive
department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised by
the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987
Constitution states that such power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives, except to the extent reserved to the people by the provision
on initiative and referendum.195 Based on this provision, it is clear that only Congress, acting as a bicameral
body, and the people, through the process of initiative and referendum, may constitutionally wield
legislative power and no other. This premise embodies the principle of non-delegability of legislative

446
power, and the only recognized exceptions thereto would be: (a) delegated legislative power to local
governments which, by immemorial practice, are allowed to legislate on purely local matters; 196 and (b)
constitutionally-grafted exceptions such as the authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national policy in times of war or other national
emergency,197 or fix within specified limits, and subject to such limitations and restrictions as Congress
may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making
authority to implementing agencies for the limited purpose of either filling up the details of the law for its
enforcement (supplementary rule-making) or ascertaining facts to bring the law into actual operation
(contingent rule-making).199 The conceptual treatment and limitations of delegated rule-making were
explained in the case of People v. Maceren200 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation
of powers and is an exception to the nondelegation of legislative powers. Administrative regulations or
"subordinate legislation" calculated to promote the public interest are necessary because of "the growing
complexity of modern life, the multiplication of the subjects of governmental regulations, and the
increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot
be extended to amending or expanding the statutory requirements or to embrace matters not covered
by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said
legislators are effectively allowed to individually exercise the power of appropriation, which – as settled
in Philconsa – is lodged in Congress.201 That the power to appropriate must be exercised only through
legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money
shall be paid out of the Treasury except in pursuance of an appropriation made by law." To understand
what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by law of a certain
sum from the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how
much from such fund would go to (b) a specific project or beneficiary that they themselves also determine.
As these two (2) acts comprise the exercise of the power of appropriation as described in Bengzon, and
given that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which the Constitution does not, however, allow.
Thus, keeping with the principle of non-delegability of legislative power, the Court hereby declares the
2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the similar
legislative identification feature as herein discussed, as unconstitutional.

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3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct does
not mean that they are absolutely unrestrained and independent of each other. The Constitution has also
provided for an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government.203

A prime example of a constitutional check and balance would be the President’s power to veto an item
written into an appropriation, revenue or tariff bill submitted to him by Congress for approval through a
process known as "bill presentment." The President‘s item-veto power is found in Section 27(2), Article VI
of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue,
or tariff bill, but the veto shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his
power of item-veto, forms part of the "single, finely wrought and exhaustively considered, procedures"
for law-passage as specified under the Constitution.204 As stated in Abakada, the final step in the law-
making process is the "submission of the bill to the President for approval. Once approved, it takes effect
as law after the required publication."205

Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the Court,
in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is essentially
a legislative act. The questions presented to the mind of the Chief Executive are precisely the same as
those the legislature must determine in passing a bill, except that his will be a broader point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but in
this respect it is a grant of power to the executive department. The Legislature has the affirmative power
to enact laws; the Chief Executive has the negative power by the constitutional exercise of which he may
defeat the will of the Legislature. It follows that the Chief Executive must find his authority in the
Constitution. But in exercising that authority he may not be confined to rules of strict construction or
hampered by the unwise interference of the judiciary. The courts will indulge every intendment in favor
of the constitutionality of a veto in the same manner as they will presume the constitutionality of an act
as originally passed by the Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as to prevent
log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive
branch‘s role in the budgetary process.208 In Immigration and Naturalization Service v. Chadha, the US

448
Supreme Court characterized the President‘s item-power as "a salutary check upon the legislative body,
calculated to guard the community against the effects of factions, precipitancy, or of any impulse
unfriendly to the public good, which may happen to influence a majority of that body"; phrased
differently, it is meant to "increase the chances in favor of the community against the passing of bad laws,
through haste, inadvertence, or design."209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item"
which may be the object of the veto. An item, as defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable parts of the appropriation or of the bill." In the case of
Bengzon v. Secretary of Justice of the Philippine Islands,210 the US Supreme Court characterized an item
of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill. (Emphases
supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able
to exercise his power of item veto, must contain "specific appropriations of money" and not only "general
provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence – meaning an allocation of a specified singular amount for a specified singular
purpose, otherwise known as a "line-item."211 This treatment not only allows the item to be consistent
with its definition as a "specific appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent
Fund and the Intelligence Fund, being appropriations which state a specified amount for a specific
purpose, would then be considered as "line- item" appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be validly apportioned into component
percentages or values; however, it is crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice
Carpio correctly pointed out, a valid appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose, e.g., MOOE (maintenance and other
operating expenses), in which case the related purposes shall be deemed sufficiently specific for the
exercise of the President‘s item veto power. Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as long as they follow the rule on
singular correspondence as herein discussed. Anent special purpose funds, it must be added that Section
25(4), Article VI of the 1987 Constitution requires that the "special appropriations bill shall specify the
purpose for which it is intended, and shall be supported by funds actually available as certified by the
National Treasurer, or t o be raised by a corresponding revenue proposal therein." Meanwhile, with
respect to discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds
"shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular
lump-sum amount to be tapped as a source of funding for multiple purposes. Since such appropriation
type necessitates the further determination of both the actual amount to be expended and the actual
purpose of the appropriation which must still be chosen from the multiple purposes stated in the law, it
cannot be said that the appropriation law already indicates a "specific appropriation of money‖ and hence,

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without a proper line-item which the President may veto. As a practical result, the President would then
be faced with the predicament of either vetoing the entire appropriation if he finds some of its purposes
wasteful or undesirable, or approving the entire appropriation so as not to hinder some of its legitimate
purposes. Finally, it may not be amiss to state that such arrangement also raises non-delegability issues
considering that the implementing authority would still have to determine, again, both the actual amount
to be expended and the actual purpose of the appropriation. Since the foregoing determinations
constitute the integral aspects of the power to appropriate, the implementing authority would, in effect,
be exercising legislative prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power of
the President mandates that appropriations bills adopt line-item budgeting" and that "Congress cannot
choose a mode of budgeting which effectively renders the constitutionally-given power of the President
useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process which is
intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations are
essential to financially address situations which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum appropriations is constitutionally allowed and
textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit
since the said amount would be further divided among individual legislators who would then receive
personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds
based on their own discretion. As these intermediate appropriations are made by legislators only after
the GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which subverts the prescribed procedure of
presentment and consequently impairs the President‘s power of item veto. As petitioners aptly point out,
the above-described system forces the President to decide between (a) accepting the entire P24.79 Billion
PDAF allocation without knowing the specific projects of the legislators, which may or may not be
consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would
remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of P24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of historical materials, construction of roads, flood control,
etc. This setup connotes that the appropriation law leaves the actual amounts and purposes of the
appropriation for further determination and, therefore, does not readily indicate a discernible item which
may be subject to the President‘s power of item veto.

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In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson
relays, "limited state auditors from obtaining relevant data and information that would aid in more
stringently auditing the utilization of said Funds."216 Accordingly, she recommends the adoption of a "line
by line budget or amount per proposed program, activity or project, and per implementing agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account for future contingencies cannot be an excuse to
defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate
defies public accountability as it renders Congress incapable of checking itself or its Members. In
particular, they point out that the Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget" which turns them "from fiscalizers" into
"financially-interested partners."219 They also claim that the system has an effect on re- election as "the
PDAF excels in self-perpetuation of elective officials." Finally, they add that the "PDAF impairs the power
of impeachment" as such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office
is a public trust," is an overarching reminder that every instrumentality of government should exercise
their official functions only in accordance with the principles of the Constitution which embodies the
parameters of the people‘s trust. The notion of a public trust connotes accountability,221 hence, the
various mechanisms in the Constitution which are designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may be
checked is the power of congressional oversight. As mentioned in Abakada,222 congressional oversight
may be performed either through: (a) scrutiny based primarily on Congress‘ power of appropriation and
the budget hearings conducted in connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to the
power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork
Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that
individual legislators are given post-enactment roles in the implementation of the budget makes it difficult
for them to become disinterested "observers" when scrutinizing, investigating or monitoring the
implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted
as said legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very same concept
of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which
provides that:

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Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before
any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies.
Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the Government for his pecuniary benefit or where
he may be called upon to act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a matter before
another office of government – renders them susceptible to taking undue advantage of their own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office. Indeed,
while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area of interest,
the use of his PDAF for re-election purposes is a matter which must be analyzed based on particular facts
and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the former‘s post-enactment participation, may affect
the process of impeachment, this matter largely borders on the domain of politics and does not strictly
concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper subject of judicial
assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article
VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms
of Congressional Pork Barrel of similar nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section
26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the
qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of itself,
provide a judicially enforceable constitutional right but merely specifies guideline for legislative or
executive action.226Therefore, since there appears to be no standing law which crystallizes the policy on
political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since it has
not been properly demonstrated how the Pork Barrel System would be able to propagate political
dynasties.

5. Local Autonomy.

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The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3,
Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

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

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in
the attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations, and
other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower
local government units (LGUs) to develop and ultimately, become self-sustaining and effective
contributors to the national economy. As explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development of
our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important, imbue
them with a deepened sense of involvement in public affairs as members of the body politic. This objective

453
could be blunted by undue interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we reach today conforms not
only to the letter of the pertinent laws but also to the spirit of the Constitution.229 (Emphases and
underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional
principles on local autonomy since it allows district representatives, who are national officers, to
substitute their judgments in utilizing public funds for local development.230 The Court agrees with
petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their congressional
colleagues, are likely to be knowledgeable about the needs of their respective constituents and the
priority to be given each project."231Drawing strength from this pronouncement, previous legislators
justified its existence by stating that "the relatively small projects implemented under the Congressional
Pork Barrel complement and link the national development goals to the countryside and grassroots as
well as to depressed areas which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms,
President Aquino mentioned that the Congressional Pork Barrel was originally established for a worthy
goal, which is to enable the representatives to identify projects for communities that the LGU concerned
cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes that
the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into
account the specific interests and peculiarities of the district the legislator represents. In this regard, the
allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration. As a result, a district representative of a highly-
urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural
province which would be relatively "underdeveloped" compared to the former. To add, what rouses
graver scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-
President – who do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to make equal
the unequal." Ultimately, the PDAF and CDF had become personal funds under the effective control of
each legislator and given unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with
the functions of the various Local Development Councils (LDCs) which are already legally mandated to
"assist the corresponding sanggunian in setting the direction of economic and social development, and
coordinating development efforts within its territorial jurisdiction."234 Considering that LDCs are
instrumentalities whose functions are essentially geared towards managing local affairs,235 their
programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who
are national officers that have no law-making authority except only when acting as a body. The
undermining effect on local autonomy caused by the post-enactment authority conferred to the latter
was succinctly put by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate projects on his
own, and even take sole credit for its execution. Indeed, this type of personality-driven project

454
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional
Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive
issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD 1993),
which respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid
appropriations laws since they do not have the "primary and specific" purpose of authorizing the release
of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is not an
appropriation law since the "primary and specific‖ purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special Fund incidental thereto.237 In similar
regard, petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary and specific" purpose of PD
1869 which is the amendment of the Franchise and Powers of PAGCOR.238 In view of the foregoing,
petitioners suppose that such funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable 240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations of
amount and purpose stem from the very definition of the word "appropriation," which means "to allot,
assign, set apart or apply to a particular use or purpose," and hence, if written into the law, demonstrate
that the legislative intent to appropriate exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an authorization or appropriation by Congress shall
be made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa – be
"detailed and as broad as Congress wants it to be" for as long as the intent to appropriate may be gleaned
from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it be
"made by law," such as precisely the authorization or appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an appropriation may be made impliedly (as by past
but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by the
present Congress), just as said appropriation may be made in general as well as in specific terms. The
Congressional authorization may be embodied in annual laws, such as a general appropriations act or in

455
special provisions of laws of general or special application which appropriate public funds for specific
public purposes, such as the questioned decrees. An appropriation measure is sufficient if the legislative
intention clearly and certainly appears from the language employed (In re Continuing Appropriations, 32
P. 272), whether in the past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or purpose.
An appropriation in the sense of the constitution means the setting apart a portion of the public funds for
a public purpose. No particular form of words is necessary for the purpose, if the intention to appropriate
is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the
"primary and specific" purpose of the law in order for a valid appropriation law to exist. To reiterate, if a
legal provision designates a determinate or determinable amount of money and allocates the same for a
particular public purpose, then the legislative intent to appropriate becomes apparent and, hence, already
sufficient to satisfy the requirement of an "appropriation made by law" under contemplation of the
Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery bonus,
production bonus; all money collected from concessionaires, representing unspent work obligations, fines
and penalties under the Petroleum Act of 1949; as well as the government share representing royalties,
rentals, production share on service contracts and similar payments on the exploration, development and
exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource
development and exploitation programs and projects of the government and for such other purposes as
may be hereafter directed by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the Government in the aggregate gross earnings of the Corporation from this
Franchise, or 60% if the aggregate gross earnings be less than P150,000,000.00 shall be set aside and shall
accrue to the General Fund to finance the priority infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a) Section
8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy
Development Board from any and all sources" (a determinable amount) "to be used to finance energy
resource development and exploitation programs and projects of the government and for such other
purposes as may be hereafter directed by the President" (a specified public purpose), and (b) Section 12

456
of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%) percent as
Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of
PAGCOR, or 60%, if the aggregate gross earnings be less than P150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development projects and x x x the restoration of damaged
or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President
of the Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article
VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision precisely because, as earlier stated, it contains post-
enactment measures which effectively create a system of intermediate appropriations. These
intermediate appropriations are the actual appropriations meant for enforcement and since they are
made by individual legislators after the GAA is passed, they occur outside the law. As such, the Court
observes that the real appropriation made under the 2013 PDAF Article is not the P24.79 Billion allocated
for the entire PDAF, but rather the post-enactment determinations made by the individual legislators
which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF Article does not
constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual legislators
to appropriate in violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis to
the same section and thus, construe the phrase "and for such other purposes as may be hereafter directed
by the President" to refer only to other purposes related "to energy resource development and
exploitation programs and projects of the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose of
(a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-making.246 There
are two (2) fundamental tests to ensure that the legislative guidelines for delegated rule-making are
indeed adequate. The first test is called the "completeness test." Case law states that a law is complete
when it sets forth therein the policy to be executed, carried out, or implemented by the delegate. On the
other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law lays
down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate‘s authority and prevent the delegation from running riot.247To be sufficient,
the standard must specify the limits of the delegate‘s authority, announce the legislative policy, and
identify the conditions under which it is to be implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes
as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation
of legislative power insofar as it does not lay down a sufficient standard to adequately determine the

457
limits of the President‘s authority with respect to the purpose for which the Malampaya Funds may be
used. As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any
other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the
purview of the law. That the subject phrase may be confined only to "energy resource development and
exploitation programs and projects of the government" under the principle of ejusdem generis, meaning
that the general word or phrase is to be construed to include – or be restricted to – things akin to,
resembling, or of the same kind or class as those specifically mentioned,249 is belied by three (3) reasons:
first, the phrase "energy resource development and exploitation programs and projects of the
government" states a singular and general class and hence, cannot be treated as a statutory reference of
specific things from which the general phrase "for such other purposes" may be limited; second, the said
phrase also exhausts the class it represents, namely energy development programs of the
government;250 and, third, the Executive department has, in fact, used the Malampaya Funds for non-
energy related purposes under the subject phrase, thereby contradicting respondents‘ own position that
it is limited only to "energy resource development and exploitation programs and projects of the
government."251 Thus, while Section 8 of PD 910 may have passed the completeness test since the policy
of energy development is clearly deducible from its text, the phrase "and for such other purposes as may
be hereafter directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of the delegating
law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for the
use of the Malampaya Funds "to finance energy resource development and exploitation programs and
projects of the government," remains legally effective and subsisting. Truth be told, the declared
unconstitutionality of the aforementioned phrase is but an assurance that the Malampaya Funds would
be used – as it should be used – only in accordance with the avowed purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869
has already been amended by PD 1993 which thus moots the parties‘ submissions on the
same.252 Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may
be used "to first, finance the priority infrastructure development projects and second, to finance the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines." The Court finds that while the second indicated purpose
adequately curtails the authority of the President to spend the Presidential Social Fund only for
restoration purposes which arise from calamities, the first indicated purpose, however, gives him carte
blanche authority to use the same fund for any infrastructure project he may so determine as a "priority".
Verily, the law does not supply a definition of "priority in frastructure development projects" and hence,
leaves the President without any guideline to construe the same. To note, the delimitation of a project as
one of "infrastructure" is too broad of a classification since the said term could pertain to any kind of
facility. This may be deduced from its lexicographic definition as follows: "the underlying framework of a
system, especially public services and facilities (such as highways, schools, bridges, sewers, and water-
systems) needed to support commerce as well as economic and residential development."253In fine, the
phrase "to finance the priority infrastructure development projects" must be stricken down as
unconstitutional since – similar to the above-assailed provision under Section 8 of PD 910 – it lies
independently unfettered by any sufficient standard of the delegating law. As they are severable, all other
provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

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Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did so in
the context of its pronouncements made in this Decision – petitioners equally pray that the Executive
Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity and the recipient entities or individuals, and all
pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the government
agency in custody thereof, the duty to disclose the information of public concern, and to afford access to
public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional
right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty,
not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether
the information sought by the petitioner is within the ambit of the constitutional guarantee. (Emphases
supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and the
like." In the same case, it was stressed that it is essential that the "applicant has a well -defined, clear and

459
certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the
act required." Hence, without the foregoing substantiations, the Court cannot grant a particular request
for information. The pertinent portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public
concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required. The corresponding duty of the respondent to perform the required act must be
clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido,
G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of respondent
to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the
Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right" to be
furnished by the Executive Secretary and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any law or administrative issuance which
would form the bases of the latter‘s duty to furnish them with the documents requested. While petitioners
pray that said information be equally released to the CoA, it must be pointed out that the CoA has not
been impleaded as a party to these cases nor has it filed any petition before the Court to be allowed access
to or to compel the release of any official document relevant to the conduct of its audit investigations.
While the Court recognizes that the information requested is a matter of significant public concern,
however, if only to ensure that the parameters of disclosure are properly foisted and so as not to unduly
hamper the equally important interests of the government, it is constrained to deny petitioners‘ prayer
on this score, without prejudice to a proper mandamus case which they, or even the CoA, may choose to
pursue through a separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished with
such schedule/list and report and not in any way deny them, or the general public, access to official
documents which are already existing and of public record. Subject to reasonable regulation and absent
any valid statutory prohibition, access to these documents should not be proscribed. Thus, in Valmonte,
while the Court denied the application for mandamus towards the preparation of the list requested by
petitioners therein, it nonetheless allowed access to the documents sought for by the latter, subject,
however, to the custodian‘s reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject
to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured Legaspi v. Civil Service Commission, supra at p. 538, quoting
Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third alternative acts sought to be
done by petitioners, is meritorious.

460
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO
and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress
of all presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from the
x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the Executive‘s Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left
to the prerogative of the political branches of government. Hence, lest the Court itself overreach, it must
equally deny their prayer on this score.

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated September
27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order
(SARO) has been issued by the DBM and such SARO has been obligated by the implementing agencies
prior to the issuance of the TRO, may continually be implemented and disbursements thereto effected by
the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and disbursement
of PDAF funds as long as they are: first, covered by a SARO; and, second, that said SARO had been obligated
by the implementing agency concerned prior to the issuance of the Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet
involve the release of funds under the PDAF, as release is only triggered by the issuance of a Notice of
Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing agency
concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO because they
cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable interpretation of the
TRO by the DBM.262

The Court agrees with petitioners in part.

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At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013 TRO
should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of the 2013
PDAF Article as declared herein has the consequential effect of converting the temporary injunction into
a permanent one. Hence, from the promulgation of this Decision, the release of the remaining PDAF funds
for 2013, among others, is now permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved as
it has a practical impact on the execution of the current Decision. In particular, the Court must resolve the
issue of whether or not PDAF funds covered by obligated SAROs, at the time this Decision is promulgated,
may still be disbursed following the DBM‘s interpretation in DBM Circular 2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds covered
by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as defined by the DBM
itself in its website, is "aspecific authority issued to identified agencies to incur obligations not exceeding
a given amount during a specified period for the purpose indicated. It shall cover expenditures the release
of which is subject to compliance with specific laws or regulations, or is subject to separate approval or
clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and
not the directive to pay. Practically speaking, the SARO does not have the direct and immediate effect of
placing public funds beyond the control of the disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will prevent the actual release of funds. On the other hand,
the actual release of funds is brought about by the issuance of the NCA,264 which is subsequent to the
issuance of a SARO. As may be determined from the statements of the DBM representative during the
Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to
enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be able
to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is
the go signal for the MDS for the authorized government-disbursing banks to, therefore, pay the payees
depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are
withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by

462
obligated SAROs, and without any corresponding NCAs issued, must, at the time of this Decision’s
promulgation, be enjoined and consequently reverted to the unappropriated surplus of the general fund.
Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated
pursuant thereto cannot be disbursed even though already obligated, else the Court sanctions the dealing
of funds coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for such
other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910; and (b)
funds sourced from the Presidential Social Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993, which were altogether
declared by the Court as unconstitutional. However, these funds should not be reverted to the general
fund as afore-stated but instead, respectively remain under the Malampaya Funds and the Presidential
Social Fund to be utilized for their corresponding special purposes not otherwise declared as
unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of (a)
the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel provisions similar
thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure development projects"
under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in effect in
view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate
case, declares the invalidity of a certain legislative or executive act, such act is presumed constitutional
and thus, entitled to obedience and respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal Revenue v. San Roque Power Corporation,266 the
doctrine merely "reflects awareness that precisely because the judiciary is the governmental organ which
has the final say on whether or not a legislative or executive measure is valid, a period of time may have
elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication."267 "In the language of an American Supreme Court decision:
‘The actual existence of a statute, prior to such a determination of unconstitutionality, is an operative fact
and may have consequences which cannot justly be ignored.‘"268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In
the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the
inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to
wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution,
the system has violated the principle of separation of powers; insofar as it has conferred unto legislators
the power of appropriation by giving them personal, discretionary funds from which they are able to fund

463
specific projects which they themselves determine, it has similarly violated the principle of non-
delegability of legislative power ; insofar as it has created a system of budgeting wherein items are not
textualized into the appropriations bill, it has flouted the prescribed procedure of presentment and, in
the process, denied the President the power to veto items ; insofar as it has diluted the effectiveness of
congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of
governance which they may be called to monitor and scrutinize, the system has equally impaired public
accountability ; insofar as it has authorized legislators, who are national officers, to intervene in affairs of
purely local nature, despite the existence of capable local institutions, it has likewise subverted genuine
local autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds
intended by law for energy-related purposes only to other purposes he may deem fit as well as other
public funds under the broad classification of "priority infrastructure development projects," it has once
more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and
mechanisms the Court has herein pointed out should never again be adopted in any system of governance,
by any name or form, by any semblance or similarity, by any influence or effect. Disconcerting as it is to
think that a system so constitutionally unsound has monumentally endured, the Court urges the people
and its co-stewards in government to look forward with the optimism of change and the awareness of the
past. At a time of great civic unrest and vociferous public debate, the Court fervently hopes that its
Decision today, while it may not purge all the wrongs of society nor bring back what has been lost, guides
this nation to the path forged by the Constitution so that no one may heretofore detract from its cause
nor stray from its course. After all, this is the Court‘s bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this
Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles
and the various Congressional Insertions, which authorize/d legislators – whether individually or
collectively organized into committees – to intervene, assume or participate in any of the various post-
enactment stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment, unrelated to the
power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel
Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects
which they themselves determine; (d) all informal practices of similar import and effect, which the Court
similarly deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e)
the phrases (1) "and for such other purposes as may be hereafter directed by the President" under Section
8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both
failing the sufficient standard test in violation of the principle of non-delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013,
as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase
"and for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of
Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance the priority
infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended
by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not covered by
Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs), whether

464
obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this permanent injunction
shall not be disbursed/released but instead reverted to the unappropriated surplus of the general fund,
while the funds under the Malampaya Funds and the Presidential Social Fund shall remain therein to be
utilized for their respective special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES
petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget and
Management be ordered to provide the public and the Commission on Audit complete lists/schedules or
detailed reports related to the availments and utilization of the funds subject of these cases. Petitioners‘
access to official documents already available and of public record which are related to these funds must,
however, not be prohibited but merely subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without prejudice to a proper mandamus case which they
or the Commission on Audit may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the
budgetary deliberations of Congress as the same is a matter left to the prerogative of the political
branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of
reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

G.R. No. 197293 April 21, 2014

ALFREDO C. MENDOZA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.

DECISION

LEONEN, J.:

While the determination of probable cause to charge a person of a crime is the sole function of the.
prosecutor, the trial court may, in the protection of one's fundamental right to liberty, dismiss the case if,
upon a personal assessment of the evidence, it finds that the evidence does not establish probable cause.

This is a petition for review on certiorari1 assailing the Court of Appeals' decision2 dated January 14, 2011,
which reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo C. Mendoza
for qualified theft and estafa.

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This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul C.
Evangelista, on January 8, 2008 for qualified theft and estafa against Alfredo.3

In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used Car
Supervisor. On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial audit of the
used cars and discovered that five (5) cars had been sold and released by Alfredo without Rolando’s or
the finance manager’s permission.4

The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit the
payments totalling P886,000.00. It was further alleged that while there were 20 cars under Alfredo’s
custody, only 18 were accounted for. Further investigation revealed that Alfredo failed to turn over the
files of a 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking into account the
unremitted amounts and the acquisition cost of the Honda City, Alfredo pilfered a total amount
of P1,046,000.00 to its prejudice and damage.5

In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed failure to prove ownership
over the five (5) cars or its right to possess them with the purported unremitted payments. Hence, it could
not have suffered damage.6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution7 finding probable cause and
recommending the filing of an information against Alfredo for qualified theft and estafa.

Alfredo moved for reconsideration, but the motion was denied.8 He then filed a petition for review with
the Department of Justice on May 16, 2008.9

While Alfredo’s motion for reconsideration was still pending before the Office of the City Prosecutor of
Mandaluyong, two informations for qualified theft10 and estafa11 were filed before the Regional Trial
Court, Branch 212, Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination of
probable cause12 before the trial court. On April 28, 2008, he also filed a motion to defer arraignment.

Several clarificatory hearings were scheduled but were not conducted.13 On February 4, 2009, the parties
agreed to submit all pending incidents, including the clarificatory hearing, for resolution.14

On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an
order15 dismissing the complaint, stating that:

After conducting an independent assessment of the evidence on record which includes the assailed
Resolution dated 04 March 2008, the court holds that the evidence adduced does not support a finding
of probable cause for the offenses of qualified theft and estafa. x x x.16

Juno Cars filed a motion for reconsideration, which the trial court denied on July 3, 2009.17

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court acted
without or in excess of its jurisdiction and with grave abuse of discretion when it dismissed the complaint.
It argued that "the determination of probable cause and the decision whether or not to file a criminal case
in court, rightfully belongs to the public prosecutor."18

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On January 14, 2011, the Court of Appeals rendered a decision,19 reversed the trial court, and reinstated
the case. In its decision, the appellate court ruled that the trial court acted without or in excess of its
jurisdiction "in supplanting the public prosecutor’s findings of probable cause with her own findings of
insufficiency of evidence and lack of probable cause."20

Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued that
the trial court was correct in finding that there was no probable cause as shown by the evidence on record.
He argued that "judicial determination of probable cause is broader than [the] executive determination
of probable cause"21and that "[i]t is not correct to say that the determination of probable cause is
exclusively vested on the prosecutor x x x."22

In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and arguments that were a
mere rehash of those already considered and passed upon by the appellate court.

The Office of the Solicitor General, arguing for public respondent, stated in its comment24 that the
appellate court correctly sustained the public prosecutor in his findings of probable cause against Alfredo.
Since there was no showing of grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial
court should respect his determination of probable cause.

In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while not a superior
faculty[,] covers a broader encompassing perspective in the disposition of the issue on the existence of
probable cause."26He argued that the findings of the trial court should be accorded greater weight than
the appellate court’s. It merely reviewed the findings of the trial court.

The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on the
basis of its own independent finding of lack of probable cause.

Time and again, this court has been confronted with the issue of the difference between the
determination of probable cause by the prosecutor on one hand and the determination of probable cause
by the judge on the other. We examine these two concepts again.

Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under Article 315, fourth
paragraph, no. 3(c)28 of the Revised Penal Code. Since qualified theft is punishable by reclusion perpetua,
a preliminary investigation must first be conducted "to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial," in accordance with Rule 112, Section 1 of the Rules on Criminal
Procedure.

At this stage, the conduct of the preliminary investigation and the subsequent determination of the
existence of probable cause lie solely within the discretion of the public prosecutor.29 If upon evaluation
of the evidence, the prosecutor finds sufficient basis to find probable cause, he or she shall then cause
the filing of the information with the court.

Once the information has been filed, the judge shall then "personally evaluate the resolution of the
prosecutor and its supporting evidence"30 to determine whether there is probable cause to issue a
warrant of arrest. At this stage, a judicial determination of probable cause exists.

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In People v. Castillo and Mejia,31 this court has stated:

There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the crime as defined by law and
thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine
whether or not a criminal case must be filed in court. Whether or not that function has been correctly
discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself does not and may not be
compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that
based on the evidence submitted, there is necessity for placing the accused under custody in order not to
frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the
arrest warrant.32

The difference is clear: The executive determination of probable cause concerns itself with whether there
is enough evidence to support an Information being filed. The judicial determination of probable cause,
on the other hand, determines whether a warrant of arrest should be issued. In People v. Inting:33

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable
cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains
whether the offender should be held for trial or released. Even if the two inquiries are conducted in the
course of one and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The preliminary
investigation proper—whether or not there is reasonable ground to believe that the accused is guilty of
the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial—is the function of the Prosecutor.34 (Emphasis supplied)

While it is within the trial court’s discretion to make an independent assessment of the evidence on hand,
it is only for the purpose of determining whether a warrant of arrest should be issued. The judge does not
act as an appellate court of the prosecutor and has no capacity to review the prosecutor’s determination
of probable cause; rather, the judge makes a determination of probable cause independent of the
prosecutor’s finding.

People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that case, Jonathan Cerbo
allegedly shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for murder was filed
against Jonathan Cerbo. The daughter of Rosalinda Dy, as private complainant, executed a complaint-
affidavit charging Billy Cerbo with conspiracy. The prosecutor then filed a motion to amend the
information, which was granted by the court. The information was then amended to include Billy Cerbo
as one of the accused, and a warrant of arrest was issued against him.

Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause. The
trial court granted this motion, recalled the warrant, and dismissed the case against him. The Court of

468
Appeals affirmed this dismissal. This court, however, reversed the Court of Appeals and ordered the
reinstatement of the amended information against Billy Cerbo, stating that:

In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private
Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its face
and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public
prosecutor, courts should not dismiss it for ‘want of evidence,’ because evidentiary matters should be
presented and heard during the trial. The functions and duties of both the trial court and the public
prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood.

The rights of the people from what could sometimes be an "oppressive" exercise of government
prosecutorial powers do need to be protected when circumstances so require. But just as we recognize
this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there
is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor’s duties,
courts ought to refrain from interfering with such lawfully and judicially mandated duties.

In any case, if there was palpable error or grave abuse of discretion in the public prosecutor’s finding of
probable cause, the accused can appeal such finding to the justice secretary and move for the deferment
or suspension of the proceedings until such appeal is resolved.36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts and
evidence were "sufficient to warrant the indictment of [petitioner] x x x."37 There was nothing in his
resolution which showed that he issued it beyond the discretion granted to him by law and jurisprudence.

While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the discretion
to make her own finding of whether probable cause existed to order the arrest of the accused and proceed
with trial.

Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court cannot
hold the accused for arraignment and trial.

Article III, Section 2 of the Constitution states:

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

The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has not
personally determined the existence of probable cause. The phrase "upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce" allows a determination of probable cause by the judge ex parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates the
judge to "immediately dismiss the case if the evidence on record fails to establish probable cause." Section
6, paragraph (a) of Rule 112 reads:

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Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days
from the filing of the complaint or information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of information.

In People v. Hon. Yadao:38

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal
information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2)
issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional
evidence within five days from notice in case of doubt as to the existence of probable cause.

But the option to order the prosecutor to present additional evidence is not mandatory.1âwphi1 The
court’s first option under the above is for it to "immediately dismiss the case if the evidence on record
clearly fails to establish probable cause." That is the situation here: the evidence on record clearly fails to
establish probable cause against the respondents.39 (Emphasis supplied)

It is also settled that "once a complaint or information is filed in court, any disposition of the case, whether
as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the
court."40

In this case, Judge Capco-Umali made an independent assessment of the evidence on record and
concluded that "the evidence adduced does not support a finding of probable cause for the offenses of
qualified theft and estafa."41 Specifically, she found that Juno Cars "failed to prove by competent
evidence"42 that the vehicles alleged to have been pilfered by Alfredo were lawfully possessed or owned
by them, or that these vehicles were received by Alfredo, to be able to substantiate the charge of qualified
theft. She also found that the complaint "[did] not state with particularity the exact value of the alleged
office files or their valuation purportedly have been removed, concealed or destroyed by the
accused,"43 which she found crucial to the prosecution of the crime of estafa under Article 315, fourth
paragraph, no. 3(c) of the Revised Penal Code. She also noted that:

x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to clear
out essential matters pertinent to the offense charged and even directed the private complainant to bring
documents relative to the same/payment as well as affidavit of witnesses/buyers with the end view of
satisfying itself that indeed probable cause exists to commit the present case which private complainant
failed to do.44

Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly
dismissed the case against Alfredo.

Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in
dismissing cases due to lack of probable cause, considering the preliminary nature of the evidence before

470
it. It is only when he or she finds that the evidence on hand absolutely fails to support a finding of probable
cause that he or she can dismiss the case. On the other hand, if a judge finds probable cause, he or she
must not hesitate to proceed with arraignment and trial in order that justice may be served.

WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of Appeals in CA-
G.R. SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C.
Mendoza are DISMISSED.

SO ORDERED.

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

A.M. No. SCC-13-18-J July 1, 2015

(Formerly A.M. OCA IPI No. 11-36-SCC)

BAGUAN M. MAMISCAL, Complainant,

vs.
CLERK OF COURT MACALINOG S. ABDULLAH, SHARI'A CIRCUIT COURT, MARAWI CITY, Respondent.

DECISION

MENDOZA, J.:

This resolves the complaint1 of Baguan M. Mamiscal (Mamiscal) against respondent Macalinog S. Abdullah
(Abdullah), Clerk of Court, Shari'a Circuit Court, Marawi City, for partiality, violation of due process,
dishonesty, and conduct unbecoming of a court employee. Originally, the complaint also charged Judge
Aboali J. Cali (Judge Cali), Presiding Judge, Shari'a Circuit Court, Marawi City, for his participation in the
subject controversy. On January 9, 2013, the Court resolved to dismiss the charges against Judge Cali for
lack of merit.2

The Facts

In his complaint, Mamiscal averred that on September 26, 2010, he and his wife, Adelaidah Lomondot
(Adelaidah) had a heated argument. In a fit of anger, Mamiscal decided to divorce his wife by repudiating
her (talaq).3 The repudiation was embodied in an agreement4 (kapasadan) signed by Mamiscal and
Adelaidah.

The next day, Adelaidah left their conjugal dwelling in Iligan City and went back to her family’s home in
Marinaut, Marawi City. A few days later, during the obligatory period of waiting (‘iddah),5 Mamiscal had
a change of heart and decided to make peace with his wife. For the purpose, he sent their common
relatives to see Adelaidah and make peace with her on his behalf.6

Almost five (5) months later, however, on February 23, 2011, Adelaidah filed7 the Certificate of Divorce
(COD),8dated September 26, 2010, with the office of Abdullah for registration. Although unsigned, the
certificate, purportedly executed by Mamiscal, certified that he had pronounced talaq in the presence of

471
two (2) witnesses and in accordance with Islamic Law for the purpose of effecting divorce from Adelaidah.
A notation on the certificate stated that it was being filed together with the kapasadan.

On the same day, Abdullah, in the exercise of his duty as both Clerk of Court and Circuit Civil
Registrar,9 issued the Invitation10 notifying the couple and their representatives to appear before the
Shari’a Circuit Court on February 28, 2011, in order to constitute the Agama Arbitration Council (AAC)that
would explore the possibility of reconciling the spouses.11

On March 24, 2011, Abdullah issued the Certificate of Registration of Divorce12 (CRD)finalizing the divorce
between Mamiscal and Adelaidah.

Mamiscal sought the revocation of the CRD, questioning the validity of the kapasadan on which the CRD
was based. In his motion, Mamiscal contended that the kapasadan was invalid considering that he did not
prepare the same. Moreover, there wereno witnesses to its execution. He claimed that he only signed the
kapasadan because of Adelaidah’s threats.

Mamiscal also questioned the validity of the COD, denying that he had executed and filed the same before
the office of Abdullah. Insisting that he never really intended to divorce his wife, Mamiscal pointed out
the fact that on December 13, 2010, before the expiration of the ‘iddah, he wrote his wife13 to inform her
that he was revoking the repudiation he made on September 26, 2010 and the kapasadan they entered
into on the same day because he did it on the "spur of the moment."14

For Mamiscal, the CRD should be declared invalid considering that: a) he was deprived of due process
because the AAC, before which he and his children were supposed to express their sentiments regarding
the divorce, was yet to be constituted; b) three days before the issuance of the CRD, Professor Mustafa
Lomala M. Dimaro, appeared before Judge Cali to discuss the possibility of reconciliation between the
parties; and c) their children, Adelah Rima and Naim Mamiscal, prayed that the trial court advise their
mother not to proceed with the divorce.15In addition to the revocation of the CRD, Mamiscal also prayed
that Abdullah order the reconvening of the AAC and, thereafter, grant the restoration of his marital rights
with Adelaidah.

On April 20, 2011, Abdullah denied Mamiscal’s motion.16 In sustaining the divorce between Mamiscal and
Abdullah, Abdullah opined that it was simply his ministerial duty to receive the COD and the attached
kapasadan filed by Adelaidah. Abdullah also noted that when the AAC was convened during the February
28, 2010 hearing, only Mamiscal and his representatives appeared. Considering the fact that Adelaidah
manifested her opposition in writing to any reconciliation with her husband and the fact that the 90-day
period of ‘iddah had already lapsed, Abdullah ruled that any move to reconstitute the AAC would have
been futile because the divorce between Mamiscal and his wife had already become final and irrevocable.

Contending that the issuance of the CRD was tainted with irregularity, Mamiscal comes to this Court,
through the subject complaint, charging Abdullah with partiality, violation of due process, dishonesty, and
conduct unbecoming of a court employee.

The Charge

In his complaint, Mamiscal averred that Abdullah should not have entertained or acted upon the COD and
the kapasadan filed by Adelaidah. He contended that under the Code of Muslim Personal Laws, a divorce

472
under talaq could only be filed and registered by the male spouse, considering that female Muslims could
do so only if the divorce was through tafwid.17 Moreover, Mamiscal alleged that Abdullah "fabricated and
twisted the facts"18 when he declared that only Mamiscal and his representative appeared when the AAC
was convened. Mamiscal insisted that Adelaidah and her relatives were also present during the hearing
of February 28, 2010, and that the AAC was never convened because the parties agreed to reset the
proceedings so that they could explore the possibility of reconciling the differences between them.
Notwithstanding the ongoing mediation proceedings, Abdullah proceeded to act on the COD and finalized
the divorce by issuing the CRD.

Finally, it was averred that Abdullah violated the Shari’a rules of procedure when he initially refused to
receive Mamiscal’s motion for reconsideration when it was first filed. Mamiscal also argued that Abdullah
should not have considered the opposition of Adelaidah when he denied his attempt to seek
reconsideration because he was never furnished a copy of Adelaidah’s opposition.

Abdullah’s Comment

In his comment,19 Abdullah countered that although he had the authority to process the registration of
the divorce as court registrar, he could not be held responsible for the contents of the COD and the
kapasadan because his functions were only ministerial. Nevertheless, Abdullah asserted that the divorce
between Mamiscal and Adelaidah had already attained finality, not only because of the lapse of the
required ‘iddah, but also because the kapasadan and Adelaidah’s opposition both proved that there could
be no reconciliation between the spouses. Abdullah also discounted any impropriety for processing the
unsigned COD, arguing that since it was accompanied by the kasapadan which bore the signature of
Mamiscal and his declaration that he was divorcing his wife by talaq– there was nothing wrong with
Adelaidah filing it with his office. Moreover, with the lapse of the ‘iddah, Abdullah argued that the COD
had remained to be nothing more than a formality for the purpose of registering the divorce with the
National Statistics Office (NSO)and its issuance using the NSO security paper.

As to the allegations pertaining to the February 28, 2010 hearing, Abdullah stated that he only conducted
the same because it was required under the Muslim Personal Code. Abdullah explained that he did not
convene the ACC anymore not only because Adelaidah or her representatives were not present, but also
because the divorcing couple’s own children wrote to him opposing the convening of the council.

As to Mamiscal’s contention that he already revoked his repudiation of his wife, Abdullah pointed out that
his office was not informed of any revocation of the divorce. According to Abdullah, if Mamiscal had
indeed revoked his repudiation, he should have complied with the provisions of Rule II (1)(2) of NSO
Administrative Order No. 1, series of 2001, which required the husband to file five (5) copies of his sworn
statement attesting to the fact of revocation, together with the written consent of his wife.

In its report,20 the Office of the Court Administrator (OCA)found Abdullah guilty of gross ignorance of the
law and recommended that he be fined in the amount of 10,000.00 with a stern warning that a repetition
of the same offense shall be dealt with severely.

On January 30, 2014, Abdullah filed a motion,21 praying for the early resolution of the complaint filed
against him. Reiterating his plea for the dismissal of the said complaint, Abdullah claimed that he was due
for compulsory retirement on June 5, 2014.

473
The Court’s Ruling

At the outset, it must first be pointed out that while it may seem to be a related issue, the validity of the
divorce between Mamiscal and Adelaidah is not in issue here. Whether or not Mamiscal had validly
effected a divorce from his wife is a matter that must first be addressed by the Shari’a Circuit Court which,
under the Code of Muslim Personal Laws of the Philippines (Muslim Code),22 enjoys exclusive original
jurisdiction to resolve disputes relating to divorce.

Thus, Article 155 of the Muslim Code provides:

Article 155. Jurisdiction. The Shari'a Circuit Courts shall have exclusive original jurisdiction over;

(1) All cases involving offenses defined and punished under this Code.

(2) All civil actions and proceedings between parties who are Muslims or have been married in
accordance with Article 13 involving disputes relating to:

(a) Marriage;

(b) Divorce recognized under this Code;

(c) Betrothal or breach of contract to marry;

(d) Customary dower (mahr);

(e) Disposition and distribution of property upon divorce;

(f) Maintenance and support, and consolatory gifts, (mut'a); and

(g) Restitution of marital rights.

(3) All cases involving disputes relative to communal properties.

[Emphases Supplied]

Consequently, in resolving the subject complaint, the Court shall confine itself to the sole issue of whether
or not Abdullah should be held administratively liable for his actions in connection with the registration
of the divorce between Mamiscal and Adelaidah. A priori to the resolution of the foregoing issue is the
question of whether this Court has jurisdiction to impose administrative sanction against Abdullah for his
acts.

The Court rules in the negative.

The civil registrar is the person charged by law for the recording of vital events and other documents
affecting the civil status of persons. The Civil Registry Law embraces all acts of civil life affecting the status
of persons and is applicable to all persons residing in the Philippines.23

474
To ensure the proper registration of all facets of the civil life of Muslim Filipinos throughout the country,
Article 81 of the Muslim Code provides:

Article 81. District Registrar. The Clerk of Court of the Shari' a District Court shall, in addition to his regular
functions, act as District Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and
Conversions within the territorial jurisdiction of said court. The Clerk of Court of the Shari'a Circuit Court
shall act as Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and Conversions
within his jurisdiction.

[Emphasis Supplied]

In view of the above-quoted provision, it becomes apparent that the Clerk of Court of the Shari'a Circuit
Court enjoys the privilege of wearing two hats: first, as Clerk of Court of the Shari'a Circuit Court, and
second, as Circuit Registrar within his territorial jurisdiction. Although the Constitution vests the Court
with the power of administrative supervision over all courts and its personnel,24 this power must be taken
with due regard to other prevailing laws.

Thus, Article 185 of the Muslim Code provides:

Article 185. Neglect of duty by registrars. Any district registrar or circuit registrar who fails to perform
properly his duties in accordance with this Code shall be penalized in accordance with Section 18 of Act
3753.

Commonwealth Act (C.A.) No. 375325 is the primary law that governs the registry of civil status of persons.
To ensure that civil registrars perform their duties under the law, Section 18 of C.A. No. 3753 provides:

Section 18. Neglect of duty with reference to the provisions of this Act. – Any local registrar who fails to
properly perform his duties in accordance with the provisions of this Act and of the regulations issued
hereunder, shall be punished for the first offense, by an administrative fine in a sum equal to his salary
for not less than fifteen days nor more than three months, and for a second or repeated offense, by
removal from the service.

[Emphasis Supplied]

The same Act provides:

Section 2. Civil Registrar-General his duties and powers. – The director of the National Library shall be Civil
Registrar-General and shall enforce the provisions of this Act. The Director of the National Library, in his
capacity as Civil Registrar-General, is hereby authorized to prepare and issue, with the approval of the
Secretary of Justice, regulations for carrying out the purposes of this Act, and to prepare and order printed
the necessary forms for its proper compliance. In the exercise of his functions as Civil Registrar-General,
the Director of the National Library shall have the power to give orders and instructions to the local Civil
registrars with reference to the performance of their duties as such. It shall be the duty of the Director of
the National Library to report any violation of the provisions of this Act and all irregularities, negligence
or incompetency on the part of the officers designated as local civil registrars to the (Chief of the Executive
Bureau or the Director of the Non-Christian Tribes) Secretary of the Interior, as the case may be, who shall
take the proper disciplinary action against the offenders.

475
[Emphasis and Underscoring Supplied]

Prescinding from the foregoing, it becomes apparent that this Court does not have jurisdiction to impose
the proper disciplinary action against civil registrars. While he is undoubtedly a member of the Judiciary
as Clerk of Court of the Shari'a Circuit Court, a review of the subject complaint reveals that Mamiscal seeks
to hold Abdullah liable for registering the divorce and issuing the CRD pursuant to his duties as Circuit
Registrar of Muslim divorces. It has been said that the test of jurisdiction is the nature of the offense and
not the personality of the offender.26 The fact that the complaint charges Abdullah for "conduct
unbecoming of a court employee" is of no moment. Well-settled is the rule that what controls is not the
designation of the offense but the actual facts recited in the complaint. Verily, unless jurisdiction has been
conferred by some legislative act, no court or tribunal can act on a matter submitted to it.27

It bears to stress at this point that this Court can resolve the foregoing jurisdictional issue even if the
matter of jurisdiction was never raised by any of the parties. Jurisprudence is replete with rulings that
jurisdiction, or the power and authority of a court to hear, try and decide a case must first be acquired by
the court or an adjudicative body over the subject matter and the parties in order to have authority to
dispose of the case on the merits.28Elementary is the distinction between jurisdiction over the subject
matter and jurisdiction over the person. Jurisdiction over the subject matter is conferred by the
Constitution or by law. In contrast, jurisdiction over the person is acquired by the court by virtue of the
party's voluntary submission to the authority of the court or through the exercise of its coercive processes.
Jurisdiction over the person is waivable unlike jurisdiction over the subject matter which is neither subject
to agreement nor conferred by consent of the parties.29

Having settled the foregoing issue, the following question now confronts the Court: Who, among the
various agencies and instrumentalities of the government, is empowered with administrative supervisory
powers in order to impose disciplinary sanctions against erring civil registrars?

On this score, a recap of the legislative history surrounding our system of civil registration is in order.

The system of civil registration was first established in the Philippines by the revolutionary government
on June18, 1898 or barely six days after the declaration of the country’s independence from Spain on June
12, 1898. Originally, the system was decentralized in the sense that civil registration was purely a local
government responsibility. It was only on February 27, 1931, when C.A. No. 3753 30 took effect and
centralized the system of civil registration in the country. Under this law, the director of the National
Library was made responsible as the Civil Registrar-General to exercise technical supervision and ensure
the proper establishment and maintenance of our civil registry system.

Then, following C.A. No. 591,31 the duties exercised by the director of National Library with regard to
matters concerning the system of civil registration were transferred to the Bureau of Census and Statistics.
This bureau subsequently became the NSO,32 whose Administrator concurrently served as the Civil
Registrar-General.33 At present, the National Statistician is empowered by Republic Act (R.A.) No. 10625,
as Civil Registrar-General to exercise technical supervision of civil registrars.34

Due to the need to address the cultural peculiarities practiced by our Muslim brethren, however, Congress
saw the need to designate the Clerk of Court of the Shari'a Circuit Court to act as the Circuit Registrar of
Muslim marriages, divorces, revocations of divorces, and conversions to Islam within his jurisdiction. As
earlier cited, Article 181 of the Muslim Code provides that: The Clerk of Court of the Shari'a Circuit Court

476
shall act as Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces, and Conversions
within his jurisdiction.

In order to ensure that Circuit Registrars remain faithful to their duties, Article 82 of the Muslim Code
tasks the Clerks of Court of the Shari'a District Court to act as District Registrars and exercise technical
supervision over Circuit Registrars by requiring them to keep a proper recording of all matters pertaining
to the personal lives of Muslims. Thus:

Article 82. Duties of District Registrar. Every District Registrar shall exercise supervision over Circuit
Registrars in every Shari'a District. He shall, in addition to an entry book, keep and bind copies of
certificates of Marriage, Divorce, Revocation of Divorce, and Conversion sent to him by the Circuit
Registrars in separate general registers. He shall send copies in accordance with Act. No. 3753, as
amended, to the office of the Civil Registrar-General.

All these notwithstanding, the power of administrative supervision over civil registrars remains with the
National Government.1âwphi1 As Section 2 of CA No. 3753 provides:

Section 2. Civil Registrar-General his duties and powers. – The director of the National Library shall be Civil
Registrar-General and shall enforce the provisions of this Act. The Director of the National Library, in his
capacity as Civil Registrar-General, is hereby authorized to prepare and issue, with the approval of the
Secretary of Justice, regulations for carrying out the purposes of this Act, and to prepare and order printed
the necessary forms for its proper compliance. In the exercise of his functions as Civil Registrar-General,
the Director of the National Library shall have the power to give orders and instructions to the local Civil
registrars with reference to the performance of their duties as such. It shall be the duty of the Director of
the National Library to report any violation of the provisions of this Act and all irregularities, negligence
or incompetency on the part of the officers designated as local civil registrars to the (Chief of the Executive
Bureau or the Director of the Non-Christian Tribes) Secretary of the Interior, as the case may be, who shall
take the proper disciplinary action against the offenders.

[Emphasis Supplied]

It was only with the advent of the Local Government Code that the power of administrative supervision
over civil registrars was devolved to the municipal and city mayors of the respective local government
units. Under the "faithful execution clause" embodied in Section 455(b)(1)(x)35 and Section
444(b)(1)(x)36 of the Local Government Code, in relation to Section 47937 under Article IX, Title V38 of the
same Code, the municipal and city mayors of the respective local government units, in addition to their
power to appoint city or municipal civil registrars are also given ample authority to exercise administrative
supervision over civil registrars. Thus, when Administrative Order No. 1, Series of 1993 of the Office of the
Civil Registrar-General (OCRG)was passed to implement CA No. 3753 it was declared:

Rule 1. Duties and Powers of the Civil Registrar-General. - The Civil Registrar-General shall have the
following duties and powers:

a) To enforce the provisions of Act No. 3753;

477
 b) To prepare and issue regulations for carrying out the purposes of Act No. 3753 and other laws
relative to civil registration, and to prepare and order printed the necessary forms for its proper
compliance;

c) To give orders and instructions to the city/municipal civil registrars with reference to the
performance of their duties as such; and

d) To report any violation of the provisions of Act No. 3753 and other laws on civil registration,
and all irregularities, negligence or incompetency of city/municipal civil registrar to the concerned
mayor who shall take the proper disciplinary action against the offender.

This authority of the Mayor to exercise administrative jurisdiction over Circuit Registrars was also
recognized generally, under Section 47(2) of the Administrative Code of 1987,39 and specifically, under
Rule 11 of Administrative Order No. 2, Series of 199340 of the OCRG, and the more recent Administrative
Order No. 5, Series of 200541 of the same office, which applies specially to the registration of acts and
events concerning the civil status of Muslim Filipinos.

At this juncture, it should be remembered that the authority of the Mayor to exercise administrative
supervision over C/MCRs is not exclusive. The Civil Service Commission (CSC), as the central personnel
agency of the government, has the power to appoint and discipline its officials and employees and to hear
and decide administrative cases instituted by or brought before it directly or on appeal.42 Under Section
9 of the Revised Uniform Rules on Administrative Cases in the Civil Service, the CSC is granted original
concurrent jurisdiction over administrative cases. Thus:

Section 9. Jurisdiction of Heads of Agencies. - The Secretaries and heads of agencies, and other
instrumentalities, provinces, cities and municipalities shall have original concurrent jurisdiction with the
Commission over their respective officers and employees. x x x

Consequently, it behooves the Court to also forward the subject complaint to the Office of the Mayor,
Marawi City and to the CSC for appropriate action.

WHEREFORE, the administrative matter against Macalinog S. Abdullah, Clerk of Court II, Shari' a Circuit
Court, Marawi City, for partiality, violation of due process, dishonesty, and conduct unbecoming a court
employee is DISMISSED for lack of jurisdiction, without prejudice. The complaint of Baguan M. Mamiscal
against Macalinog S. Abdullah is hereby REFERRED to the Office of the Mayor, Marawi City and the Civil
Service Commission for appropriate action.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

G.R. No. 177597 July 16, 2008

BAI SANDRA S. A. SEMA, Petitioner,

vs.
COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.

478
x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178628

PERFECTO F. MARQUEZ, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

CARPIO, J.:

The Case

These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May 2007, of the Commission
on Elections (COMELEC) treating Cotabato City as part of the legislative district of the Province of Shariff
Kabunsuan.2

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province
of Maguindanao. The first legislative district consists of Cotabato City and eight
municipalities.3 Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM),
created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA
9054).4 Although under the Ordinance, Cotabato City forms part of Maguindanao’s first legislative district,
it is not part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in the
plebiscite held in November 1989.

On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly, exercising its power to create
provinces under Section 19, Article VI of RA 9054,5 enacted Muslim Mindanao Autonomy Act No. 201
(MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in the
first district of Maguindanao. MMA Act 201 provides:

Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan
Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of Maguindanao and
constituted into a distinct and independent province, which is hereby created, to be known as the
Province of Shariff Kabunsuan.

xxxx

Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional
Governor or election of the governor and majority of the regular members of the Sangguniang
Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their
unexpired terms in the province that they will choose or where they are residents: Provided, that where
an elective position in both provinces becomes vacant as a consequence of the creation of the Province

479
of Shariff Kabunsuan, all incumbent elective provincial officials shall have preference for appointment to
a higher elective vacant position and for the time being be appointed by the Regional Governor, and shall
hold office until their successors shall have been elected and qualified in the next local elections; Provided,
further, that they shall continue to receive the salaries they are receiving at the time of the approval of
this Act until the new readjustment of salaries in accordance with law. Provided, furthermore, that there
shall be no diminution in the number of the members of the Sangguniang Panlalawigan of the mother
province.

Except as may be provided by national law, the existing legislative district, which includes Cotabato as a
part thereof, shall remain.

Later, three new municipalities6 were carved out of the original nine municipalities constituting Shariff
Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were
the municipalities constituting its second legislative district. Cotabato City, although part of
Maguindanao’s first legislative district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a plebiscite held on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting
the COMELEC to "clarify the status of Cotabato City in view of the conversion of the First District of
Maguindanao into a regular province" under MMA Act 201.

In answer to Cotabato City’s query, the COMELEC issued Resolution No. 07-0407 on 6 March 2007
"maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District
of Maguindanao." Resolution No. 07-0407, which adopted the recommendation of the COMELEC’s Law
Department under a Memorandum dated 27 February 2007,7 provides in pertinent parts:

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the
recommendation of the Law Department that pending the enactment of the appropriate law by
Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative
District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007
Resolution No. 7845 stating that Maguindanao’s first legislative district is composed only of Cotabato City
because of the enactment of MMA Act 201.8

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending
Resolution No. 07-0407 by renaming the legislative district in question as "Shariff Kabunsuan Province
with Cotabato City (formerly First District of Maguindanao with Cotabato City)."91avvphi1

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of "Shariff
Kabunsuan with Cotabato City," prayed for the nullification of COMELEC Resolution No. 7902 and the
exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended that Shariff
Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the
Constitution10 and Section 3 of the Ordinance appended to the Constitution.11 Thus, Sema asserted that
the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained
the status quo in Maguindanao’s first legislative district despite the COMELEC’s earlier directive in

480
Resolution No. 7845 designating Cotabato City as the lone component of Maguindanao’s reapportioned
first legislative district.12 Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped
Congress’ power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the
merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to nullify
COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its administrative,
not quasi-judicial, power and (2) Sema’s prayer for the writ of prohibition in G.R. No. 177597 became
moot with the proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007
as representative of the legislative district of Shariff Kabunsuan Province with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC
Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated that
she was seeking election as representative of "Shariff Kabunsuan including Cotabato City." Respondent
Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a
legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely
renamed Maguindanao’s first legislative district. Respondent Dilangalen further claimed that the
COMELEC could not reapportion Maguindanao’s first legislative district to make Cotabato City its sole
component unit as the power to reapportion legislative districts lies exclusively with Congress, not to
mention that Cotabato City does not meet the minimum population requirement under Section 5 (3),
Article VI of the Constitution for the creation of a legislative district within a city.13

Sema filed a Consolidated Reply controverting the matters raised in respondents’ Comments and
reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment on
the issue of whether a province created by the ARMM Regional Assembly under Section 19, Article VI of
RA 9054 is entitled to one representative in the House of Representatives without need of a national law
creating a legislative district for such new province. The parties submitted their compliance as follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa v.
Salas14stated that "when a province is created by statute, the corresponding representative
district comes into existence neither by authority of that statute — which cannot provide
otherwise — nor by apportionment, but by operation of the Constitution, without a
reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160) "affirms" the
apportionment of a legislative district incident to the creation of a province; and (c) Section 5 (3),
Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution
mandate the apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on the
propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema, contending
that Section 5 (3), Article VI of the Constitution is "self-executing." Thus, every new province
created by the ARMM Regional Assembly is ipso facto entitled to one representative in the House
of Representatives even in the absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the
"province" contemplated in Section 5 (3), Article VI of the Constitution is one that is created by

481
 an act of Congress taking into account the provisions in RA 7160 on the creation of provinces; (b)
Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact
measures relating to national elections, which encompasses the apportionment of legislative
districts for members of the House of Representatives; (c) recognizing a legislative district in every
province the ARMM Regional Assembly creates will lead to the disproportionate representation
of the ARMM in the House of Representatives as the Regional Assembly can create provinces
without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a
population of less than 250,000, is not entitled to a representative in the House of
Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the following
issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the
power to create provinces, is constitutional; and (2) if in the affirmative, whether a province created under
Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without
need of a national law creating a legislative district for such new province.15

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their
respective Memoranda on the issues raised in the oral arguments.16 On the question of the
constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the following
positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid delegation
by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of the
Constitution granting to the autonomous regions, through their organic acts, legislative powers
over "other matters as may be authorized by law for the promotion of the general welfare of the
people of the region" and (b) as an amendment to Section 6 of RA 7160.17 However, Sema
concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the ARMM
Regional Assembly of the power to "prescribe standards lower than those mandated" in RA 7160
in the creation of provinces contravenes Section 10, Article X of the Constitution.18 Thus, Sema
proposed that Section 19 "should be construed as prohibiting the Regional Assembly from
prescribing standards x x x that do not comply with the minimum criteria" under RA 7160.19

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional on
the following grounds: (a) the power to create provinces was not among those granted to the
autonomous regions under Section 20, Article X of the Constitution and (b) the grant under
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe
standards lower than those mandated in Section 461 of RA 7160 on the creation of provinces
contravenes Section 10, Article X of the Constitution and the Equal Protection Clause; and

(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus effectively
abandoning the position the COMELEC adopted in its Compliance with the Resolution of 4
September 2007) and contended that Section 19, Article VI of RA 9054 is unconstitutional because
(a) it contravenes Section 10 and Section 6,20 Article X of the Constitution and (b) the power to
create provinces was withheld from the autonomous regions under Section 20, Article X of the
Constitution.

On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law creating a legislative district

482
for such new province, Sema and respondent Dilangalen reiterated in their Memoranda the positions they
adopted in their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it
unnecessary to submit its position on this issue considering its stance that Section 19, Article VI of RA 9054
is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27 November
2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628 consolidated with
G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra
vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative in the House
of Representatives. In its Comment to the petition in G.R. No. 178628, the COMELEC, through the OSG,
maintained the validity of COMELEC Resolution No. 7902 as a temporary measure pending the enactment
by Congress of the "appropriate law."

The Issues

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily –

(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and

(2) whether the proclamation of respondent Dilangalen as representative of Shariff

Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits –

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly
the power to create provinces, cities, municipalities and barangays, is constitutional; and

(2) if in the affirmative, whether a province created by the ARMM Regional Assembly
under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law creating a
legislative district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for
maintaining the status quo in the first legislative district of Maguindanao (as "Shariff Kabunsuan
Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]"), despite
the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional
insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2)

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 MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No.
7902 is valid.

On the Preliminary Matters

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any tribunal, board, or
officer exercising judicial or quasi-judicial functions."21 On the other hand, the writ of Mandamus will issue
to compel a tribunal, corporation, board, officer, or person to perform an act "which the law specifically
enjoins as a duty."22True, the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or
quasi-judicial functions.23Nor is there a law which specifically enjoins the COMELEC to exclude from
canvassing the votes cast in Cotabato City for representative of "Shariff Kabunsuan Province with
Cotabato City." These, however, do not justify the outright dismissal of the petition in G.R. No. 177597
because Sema also prayed for the issuance of the writ of Prohibition and we have long recognized this
writ as proper for testing the constitutionality of election laws, rules, and regulations.24

Respondent Dilangalen’s Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalen’s proclamation as winner in the 14 May
2007 elections for representative of "Shariff Kabunsuan Province with Cotabato City" mooted this
petition. This case does not concern respondent Dilangalen’s election. Rather, it involves an inquiry into
the validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section
19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another, determines
whether the votes cast in Cotabato City for representative of the district of "Shariff Kabunsuan Province
with Cotabato City" will be included in the canvassing of ballots. However, this incidental consequence is
no reason for us not to proceed with the resolution of the novel issues raised here. The Court’s ruling in
these petitions affects not only the recently concluded elections but also all the other succeeding elections
for the office in question, as well as the power of the ARMM Regional Assembly to create in the future
additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the Constitution, which
provides:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished or its
boundary substantially altered except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.

484
Thus, the creation of any of the four local government units – province, city, municipality or barangay –
must comply with three conditions. First, the creation of a local government unit must follow the criteria
fixed in the Local Government Code. Second, such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political units affected.

There is neither an express prohibition nor an express grant of authority in the Constitution for Congress
to delegate to regional or local legislative bodies the power to create local government units. However,
under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create
local government units, subject to reasonable standards and provided no conflict arises with any provision
of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils,
the power to create barangays within their jurisdiction,25 subject to compliance with the criteria
established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, "only x x x an Act of Congress" can create
provinces, cities or municipalities.261avvphi1

Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power
to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation
under its plenary legislative powers because the power to create local government units is not one of the
express legislative powers granted by the Constitution to regional legislative bodies.27 In the present case,
the question arises whether the delegation to the ARMM Regional Assembly of the power to create
provinces, cities, municipalities and barangays conflicts with any provision of the Constitution.

There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of
the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is
followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the
Constitution provides, "Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative" in the House of Representatives. Similarly, Section 3 of
the Ordinance appended to the Constitution provides, "Any province that may hereafter be created, or
any city whose population may hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member x x x."

Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3),
Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the
same reason, a city with a population of 250,000 or more cannot also be created without a legislative
district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also
the power to create a legislative district. Even the creation of a city with a population of less than 250,000
involves the power to create a legislative district because once the city’s population reaches 250,000, the
city automatically becomes entitled to one representative under Section 5 (3), Article VI of the
Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a
province or city inherently involves the power to create a legislative district.

For Congress to delegate validly the power to create a province or city, it must also validly delegate at the
same time the power to create a legislative district. The threshold issue then is, can Congress validly
delegate to the ARMM Regional Assembly the power to create legislative districts for the House of
Representatives? The answer is in the negative.

Legislative Districts are Created or Reapportioned

Only by an Act of Congress

485
Under the present Constitution, as well as in past28 Constitutions, the power to increase the allowable
membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively
in Congress. Section 5, Article VI of the Constitution provides:

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

xxxx

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent
territory. Each city with a population of at least two hundred fifty thousand, or each province,
shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section. (Emphasis
supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the
allowable membership in the House of Representatives. Section 5 (4) empowers Congress to reapportion
legislative districts. The power to reapportion legislative districts necessarily includes the power to create
legislative districts out of existing ones. Congress exercises these powers through a law that Congress
itself enacts, and not through a law that regional or local legislative bodies enact. The allowable
membership of the House of Representatives can be increased, and new legislative districts of Congress
can be created, only through a national law passed by Congress. In Montejo v. COMELEC,29 we held that
the "power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws,"
and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create or reapportion legislative districts
is logical. Congress is a national legislature and any increase in its allowable membership or in its
incumbent membership through the creation of legislative districts must be embodied in a national law.
Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create
or reapportion legislative districts for a national legislature like Congress. An inferior legislative body,
created by a superior legislative body, cannot change the membership of the superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic
act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the
Constitution and the ARMM Organic Act, as amended. Thus, Section 20, Article X of the Constitution
provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national
laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

486
 (2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of
the people of the region.

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or
impliedly, to create or reapportion legislative districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, "The
Regional Assembly may exercise legislative power x x x except on the following matters: x x
x (k) National elections. x x x." Since the ARMM Regional Assembly has no legislative power to enact laws
relating to national elections, it cannot create a legislative district whose representative is elected in
national elections. Whenever Congress enacts a law creating a legislative district, the first representative
is always elected in the "next national elections" from the effectivity of the law.30

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant,
a Member of the House of Representatives, is a national official.31 It would be incongruous for a regional
legislative body like the ARMM Regional Assembly to create a national office when its legislative powers
extend only to its regional territory. The office of a district representative is maintained by national funds
and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the
legislative powers of every local or regional legislative body that it can only create local or regional offices,
respectively, and it can never create a national office.

To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to
operate outside the ARMM’s territorial jurisdiction. This violates Section 20, Article X of the Constitution
which expressly limits the coverage of the Regional Assembly’s legislative powers "[w]ithin its territorial
jurisdiction x x x."

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of
Congress’ power to create or reapportion legislative districts by abstaining from creating a legislative
district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Except as may be provided by national law, the existing legislative district, which includes Cotabato City
as a part thereof, shall remain. (Emphasis supplied)

487
However, a province cannot legally be created without a legislative district because the Constitution
mandates that "each province shall have at least one representative." Thus, the creation of the Province
of Shariff Kabunsuan without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which
provides:

Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.
Each city with a population of at least two hundred fifty thousand, or each province, shall have at least
one representative. (Emphasis supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may hereafter increase to
more than two hundred fifty thousand shall be entitled in the immediately following election to at least
one Member or such number of Members as it may be entitled to on the basis of the number of its
inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such new province was
created or where the city, whose population has so increased, is geographically located shall be
correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within
one hundred and twenty days before the election. (Emphasis supplied)

serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is
automatically entitled to one member in the House of Representatives in the 14 May 2007 elections. As
further support for her stance, petitioner invokes the statement in Felwa that "when a province is created
by statute, the corresponding representative district comes into existence neither by authority of that
statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution,
without a reapportionment."

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the
provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional
representation in the old and new provinces, was unconstitutional for "creati[ng] congressional districts
without the apportionment provided in the Constitution." The Court answered in the negative, thus:

The Constitution ordains:

"The House of Representatives shall be composed of not more than one hundred and twenty Members
who shall be apportioned among the several provinces as nearly as may be according to the number of
their respective inhabitants, but each province shall have at least one Member. The Congress shall by law
make an apportionment within three years after the return of every enumeration, and not otherwise.
Until such apportionment shall have been made, the House of Representatives shall have the same
number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified
electors from the present Assembly districts. Each representative district shall comprise as far as
practicable, contiguous and compact territory."

488
Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the
creation of a province — for "each province shall have at least one member" in the House of
Representatives; or (b) by direct creation of several representative districts within a province. The
requirements concerning the apportionment of representative districts and the territory thereof refer
only to the second method of creation of representative districts, and do not apply to those incidental to
the creation of provinces, under the first method. This is deducible, not only from the general tenor of the
provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that
which is made by an Act of Congress. Indeed, when a province is created by statute, the corresponding
representative district, comes into existence neither by authority of that statute — which cannot provide
otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment.

There is no constitutional limitation as to the time when, territory of, or other conditions under which a
province may be created, except, perhaps, if the consequence thereof were to exceed the maximum of
120 representative districts prescribed in the Constitution, which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been created or subdivided into other provinces, with
the consequent creation of additional representative districts, without complying with the
aforementioned requirements.32 (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative districts
"indirectly" through a special law enacted by Congress creating a province and (2) the creation of the
legislative districts will not result in breaching the maximum number of legislative districts provided under
the 1935 Constitution. Felwa does not apply to the present case because in Felwa the new provinces were
created by a national law enacted by Congress itself. Here, the new province was created merely by
a regional law enacted by the ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not emanate alone from
Congress’ power to reapportion legislative districts, but also from Congress’ power to create provinces
which cannot be created without a legislative district. Thus, when a province is created, a legislative
district is created by operation of the Constitution because the Constitution provides that "each province
shall have at least one representative" in the House of Representatives. This does not detract from the
constitutional principle that the power to create legislative districts belongs exclusively to Congress. It
merely prevents any other legislative body, except Congress, from creating provinces because for a
legislative body to create a province such legislative body must have the power to create legislative
districts. In short, only an act of Congress can trigger the creation of a legislative district by operation of
the Constitution. Thus, only Congress has the power to create, or trigger the creation of, a legislative
district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Kabunsuan upon its
creation, this will leave Cotabato City as the lone component of the first legislative district of
Maguindanao. However, Cotabato City cannot constitute a legislative district by itself because as of the
census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as the
surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI of the Constitution
which requires that "[E]ach city with a population of at least two hundred fifty thousand x x x, shall have
at least one representative."

Second. Sema’s theory also undermines the composition and independence of the House of
Representatives. Under Section 19,33 Article VI of RA 9054, the ARMM Regional Assembly can create
provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA

489
7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000
square kilometers or minimum population of 250,000.34 The following scenarios thus become distinct
possibilities:

(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more
provinces and thus increase the membership of a superior legislative body, the House of
Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a national law
provides otherwise);

(2) The proportional representation in the House of Representatives based on one representative
for at least every 250,000 residents will be negated because the ARMM Regional Assembly need
not comply with the requirement in Section 461(a)(ii) of RA 7160 that every province created must
have a population of at least 250,000; and

(3) Representatives from the ARMM provinces can become the majority in the House of
Representatives through the ARMM Regional Assembly’s continuous creation of provinces or
cities within the ARMM.

The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights the
absurdity of Sema’s position that the ARMM Regional Assembly can create provinces:

Justice Carpio:

So, you mean to say [a] Local Government can create legislative district[s] and pack Congress with their
own representatives [?]

Atty. Vistan II:35

Yes, Your Honor, because the Constitution allows that.

Justice Carpio:

So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and, therefore, they
can have thirty-five (35) new representatives in the House of Representatives without Congress agreeing
to it, is that what you are saying? That can be done, under your theory[?]

Atty. Vistan II:

Yes, Your Honor, under the correct factual circumstances.

Justice Carpio:

Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there may be x x x
[only] one hundred thousand (100,000) [population], x x x, and they will each have one representative x
x x to Congress without any national law, is that what you are saying?

Atty. Vistan II:

490
Without law passed by Congress, yes, Your Honor, that is what we are saying.

xxxx

Justice Carpio:

So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000) representatives
to the House of Representatives without a national law[,] that is legally possible, correct?

Atty. Vistan II:

Yes, Your Honor.36 (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional
autonomy,37 nor Congress in enacting RA 9054, envisioned or intended these disastrous consequences
that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the
power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised
by Congress itself. Even the ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion legislative districts, not the regional
assemblies. Section 3 of the Ordinance to the Constitution which states, "[A]ny province that may
hereafter be created x x x shall be entitled in the immediately following election to at least one Member,"
refers to a province created by Congress itself through a national law. The reason is that the creation of a
province increases the actual membership of the House of Representatives, an increase that only Congress
can decide. Incidentally, in the present 14th Congress, there are 21938 district representatives out of the
maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent
of total membership of the House, there should at least be 50 party-list seats available in every election
in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district
representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for
Congress to increase by law the allowable membership of the House, even before Congress can create
new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20,
Article X of the Constitution expressly provides that the legislative powers of regional assemblies are
limited "[w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and national
laws, x x x." The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government
is established "within the framework of the Constitution." This follows Section 15, Article X of the
Constitution which mandates that the ARMM "shall be created x x x within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the Republic of the
Philippines."

The present case involves the creation of a local government unit that necessarily involves also the
creation of a legislative district. The Court will not pass upon the constitutionality of the creation of
municipalities and barangays that does not comply with the criteria established in Section 461 of RA 7160,
as mandated in Section 10, Article X of the Constitution, because the creation of such municipalities and
barangays does not involve the creation of legislative districts. We leave the resolution of this issue to an
appropriate case.

491
In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and
Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the
Constitution. Only Congress can create provinces and cities because the creation of provinces and cities
necessarily includes the creation of legislative districts, a power only Congress can exercise under Section
5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM
Regional Assembly cannot create a province without a legislative district because the Constitution
mandates that every province shall have a legislative district. Moreover, the ARMM Regional Assembly
cannot enact a law creating a national office like the office of a district representative of Congress because
the legislative powers of the ARMM Regional Assembly operate only within its territorial jurisdiction as
provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the
ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative
district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section
5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance
appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it
grants to the Regional Assembly of the Autonomous Region in Muslim Mindanao the power to create
provinces and cities. Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the
Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

G.R. No. 156208 September 26, 2006

NPC DRIVERS AND MECHANICS ASSOCIATION, (NPC DAMA), represented by Its President ROGER S. SAN
JUAN, SR., NPC EMPLOYEES & WORKERS UNION (NEWU) – NORTHERN LUZON REGIONAL CENTER,
represented by its Regional President JIMMY D. SALMAN, in their own individual capacities and in
behalf of the members of the associations and all affected officers and employees of National Power
Corporation (NPC), ZOL D. MEDINA, NARCISO M. MAGANTE, VICENTE B. CIRIO, JR., NECITAS B.
CAMAMA, in their individual capacities as employees of National Power Corporation, petitioners,
vs.
THE NATIONAL POWER CORPORATION (NPC), NATIONAL POWER BOARD OF DIRECTORS (NPB), JOSE
ISIDRO N. CAMACHO as Chairman of the National Power Board of Directors (NPB), ROLANDO S.
QUILALA, as President – Officer-in-charge/CEO of National Power Corporation and Member of National
Power Board, and VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS P. CORPUS, RUBEN S. REINOSO,
JR., GREGORY L. DOMINGO and NIEVES L. OSORIO, respondents.

492
DECISION

CHICO-NAZARIO, J.:

Before Us is a special civil action for Injunction to enjoin public respondents from implementing the
National Power Board (NPB) Resolutions No. 2002-124 and No. 2002-125, both dated 18 November 2002,
directing, among other things, the termination of all employees of the National Power Corporation (NPC)
on 31 January 2003 in line with the restructuring of the NPC.

On 8 June 2001, Republic Act No. 9136, otherwise known as the "Electric Power Industry Reform Act of
2001" (EPIRA Law), was approved and signed into law by President Gloria Macapagal-Arroyo, and took
effect on 26 June 2001. Section 2(i) and Section 3 of the EPIRA Law states:

Section 2. Declaration of Policy. – It is hereby declared the policy of the State:

xxxx

(i) To provide for an orderly and transparent privatization of the assets and liabilities of the
National Power Corporation (NPC);

xxxx

Section 3. Scope. – This Act shall provide a framework for the restructuring of the electric power
industry, including the privatization of the assets of NPC, the transition to the desired competitive
structure, and the definition of the responsibilities of the various government agencies and
private entities.1

Under the EPIRA Law,2 a new National Power Board of Directors was constituted composed of the
Secretary of Finance as Chairman, with the Secretary of Energy, the Secretary of Budget and Management,
the Secretary of Agriculture, the Director-General of the National Economic and Development Authority,
the Secretary of Environment and Natural Resources, the Secretary of Interior and Local Government, the
Secretary of the Department of Trade and Industry, and the President of the National Power Corporation
as members.

On 27 February 2002, the Secretary of the Department of Energy (DOE) promulgated the Implementing
Rules and Regulations (IRR) of the EPIRA Law, pursuant to Section 773 thereof. Said IRR were approved by
the Joint Congressional Power Commission on even date. Meanwhile, also in pursuant to the provisions
of the EPIRA Law, the DOE created the Energy Restructuring Steering Committee (Restructuring
Committee) to manage the privatization and restructuring of the NPC, the National Transmission
Corporation (TRANSCO), and the Power Sector Assets and Liabilities Corporation (PSALM).

To serve as the overall organizational framework for the realigned functions of the NPC mandated under
the EPIRA Law, the Restructuring Committee proposed a new NPC Table of Organization which was
approved by the NPB through NPB Resolution No. 2002-53 dated 11 April 2002. Likewise, the
Restructuring Committee reviewed the proposed 2002 NPC Restructuring Plan and assisted in the
implementation of Phase I (Realignment) of said Plan, and thereafter recommended to the NPB for
approval the adoption of measures pertaining to the separation and hiring of NPC personnel. The NPB,

493
taking into consideration the recommendation of the Restructuring Committee, thus amended the
Restructuring Plan approved under NPB Resolution No. 2002-53.

On 18 November 2002, pursuant to Section 634 of the EPIRA Law and Rule 335 of the IRR, the NPB passed
NPB Resolution No. 2002-124 which provided for the Guidelines on the Separation Program of the NPC
and the Selection and Placement of Personnel in the NPC Table of Organization. Under said Resolution,
all NPC personnel shall be legally terminated on 31 January 2003, and shall be entitled to separation
benefits. On the same day, the NPB approved NPB Resolution No. 2002-125, whereby a Transition Team
was constituted to manage and implement the NPC's Separation Program.

In a Memorandum dated 21 November 2002, the NPC OIC-President and CEO Rolando S. Quilala circulated
the assailed Resolutions and directed the concerned NPC officials to disseminate and comply with said
Resolutions and implement the same within the period provided for in the timetable set in NPB Resolution
No. 2002-125. As a result thereof, Mr. Paquito F. Garcia, Manager – HRSD and Resources and
Administration Coordinator of NPC, circulated a Memorandum dated 22 November 2002 to all NPC
officials and employees providing for a checklist of the documents required for securing clearances for
the processing of separation benefits of all employees who shall be terminated under the Restructuring
Plan.

Contending that the assailed NPB Resolutions are void and without force and effect, herein petitioners, in
their individual and representative capacities, filed the present Petition for Injunction to restrain
respondents from implementing NPB Resolutions No. 2002-124 and No. 2002-125. In support thereof,
petitioners invoke Section 78 of the EPIRA Law, to wit:

Section 78. Injunction and Restraining Order. – The implementation of the provisions of this Act
shall not be restrained or enjoined except by an order issued by the Supreme Court of the
Philippines.

In assailing the validity of NPB Resolutions No. 2002-124 and No. 2002-125, petitioners maintain that said
Resolutions were not passed and issued by a majority of the members of the duly constituted Board of
Directors since only three of its members, as provided under Section 486 of the EPIRA Law, were present,
namely: DOE Secretary Vincent S. Perez, Jr.; Department of Budget and Management Secretary Emilia T.
Boncodin; and NPC OIC-President Rolando S. Quilala. According to petitioners, the other four members
who were present at the meeting and signed the Resolutions were not the secretaries of their respective
departments but were merely representatives or designated alternates of the officials who were named
under the EPIRA Law to sit as members of the NPB. Petitioners claim that the acts of these representatives
are violative of the well-settled principle that "delegated power cannot be further delegated." Thus,
petitioners conclude that the questioned Resolutions have been illegally issued as it were not issued by a
duly constituted board since no quorum existed because only three of the nine members, as provided
under Section 48 of the EPIRA Law, were present and qualified to sit and vote.

It is petitioners' submission that even assuming arguendo that there was no undue delegation of power
to the four representatives who signed the assailed Resolutions, said Resolutions cannot still be given
legal effect because the same did not comply with the mandatory requirement of endorsement by the
Joint Congressional Power Commission and approval of the President of the Philippines, as provided under
Section 47 of the EPIRA Law which states that:

494
 Section 47. NPC Privatization. – Except for the assets of SPUG, the generation assets, real estate,
and other disposable assets as well as IPP contracts of NPC shall be privatized in accordance with
this Act. Within six (6) months from effectivity of this Act, the PSALM Corp. shall submit a plan for
the endorsement by the Joint Congressional Power Commission and the approval of the President
of the Philippines, on the total privatization of the generation assets, real estate, other disposable
assets as well as existing IPP contracts of NPC and thereafter, implement the same, in accordance
with the following guidelines, except as provided for in paragraph (f) herein: x x x.

Petitioners insist that if ever there exists a valid wholesale abolition of their positions and their
concomitant separation form the service, such a process is an integral part of "privatization" and
"restructuring" as defined under the EPIRA Law and, therefore, must comply with the above-quoted
provision requiring the endorsement of the Joint Congressional Power Commission and the approval of
the President of the Philippines. Furthermore, petitioner highlight the fact that said Resolutions will have
an adverse effect on about 5,648 employees of the NPC and will result in the displacement of some 2,370
employees, which, petitioners argue, is contrary to the mandate of the Constitution to promote full
employment and security of tenure.

Respondents, on the other hand, uphold the validity of the assailed Resolutions by arguing that while it is
true that four members of the National Power Board of Directors, particularly the respective Secretaries
of the Department of Interior and Local Government, the Department of Trade and Industry, and the
Department of Finance, as well as the Director-General of the National Economic and Development
Authority, were not the actual signatories in NPB Resolutions No. 2002-124 and No. 2002-125, they were,
however, ably represented by their respective alternates. Respondents claim that the validity of such
administrative practice whereby an authority is exercised by persons or subordinates appointed by the
responsible official has long been settled. Respondents further contend that Section 48 of the EPIRA Law
does not in any way prohibit any member of the NPB from authorizing his representative to sign
resolutions adopted by the Board.

From the arguments put forward by herein parties, it is evident that the pivotal issue to be resolved in this
Petition for Injunction is whether or not NPB Resolutions No. 2002-124 and No. 2002-125 were properly
enacted. It is petitioners' contention that the failure of the four specifically identified department
heads7 under Section 48 of the EPIRA Law to personally approve and sign the assailed Resolutions
invalidates the adoption of said Resolutions. Petitioners maintain that there was undue delegation of
delegated power when only the representatives of certain members of the NPB attended the board
meetings and passed and signed the questioned Resolutions.

We agree with petitioners. In enumerating under Section 48 those who shall compose the National Power
Board of Directors, the legislature has vested upon these persons the power to exercise their judgment
and discretion in running the affairs of the NPC. Discretion may be defined as "the act or the liberty to
decide according to the principles of justice and one's ideas of what is right and proper under the
circumstances, without willfulness or favor.8 Discretion, when applied to public functionaries, means a
power or right conferred upon them by law of acting officially in certain circumstances, according to the
dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.9 It
is to be presumed that in naming the respective department heads as members of the board of directors,
the legislature chose these secretaries of the various executive departments on the basis of their personal
qualifications and acumen which made them eligible to occupy their present positions as department
heads. Thus, the department secretaries cannot delegate their duties as members of the NPB, much less

495
their power to vote and approve board resolutions, because it is their personal judgment that must be
exercised in the fulfillment of such responsibility.

There is no question that the enactment of the assailed Resolutions involves the exercise of discretion
and not merely a ministerial act that could be validly performed by a delegate, thus, the rule enunciated
in the case of Binamira v. Garrucho10 is relevant in the present controversy, to wit:

An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being
that he was chosen because he was deemed fit and competent to exercise that judgment and
discretion, and unless the power to substitute another in his place has been given to him, he
cannot delegate his duties to another.

In those cases in which the proper execution of the office requires, on the part of the officer, the
exercise of judgment or discretion, the presumption is that he was chosen because he was
deemed fit and competent to exercise that judgment and discretion, and, unless power to
substitute another in his place has been given to him, he cannot delegate his duties to another.

Respondents' assertion to the contrary is not tenable. The ruling in the case cited by respondents to
support their contention is not applicable in the case at bar. While it is true that the Court has determined
in the case of American Tobacco Company v. Director of Patents11 that a delegate may exercise his
authority through persons he appoints to assist him in his functions, it must be stressed that the Court
explicitly stated in the same case that said practice is permissible only when the judgment and
discretion finally exercised are those of the officer authorized by law. According to the Court, the rule
that requires an administrative officer to exercise his own judgment and discretion does not preclude him
from utilizing, as a matter of practical administrative procedure, the aid of subordinates, so long as it is
the legally authorized official who makes the final decision through the use of his own personal judgment.

In the case at bar, it is not difficult to comprehend that in approving NPB Resolutions No. 2002-124 and
No. 2002-125, it is the representatives of the secretaries of the different executive departments and not
the secretaries themselves who exercised judgment in passing the assailed Resolution, as shown by the
fact that it is the signatures of the respective representatives that are affixed to the questioned
Resolutions. This, to our mind, violates the duty imposed upon the specifically enumerated department
heads to employ their own sound discretion in exercising the corporate powers of the NPC. Evidently, the
votes cast by these mere representatives in favor of the adoption of the said Resolutions must not be
considered in determining whether or not the necessary number of votes was garnered in order that the
assailed Resolutions may be validly enacted. Hence, there being only three valid votes cast out of the nine
board members, namely those of DOE Secretary Vincent S. Perez, Jr.; Department of Budget and
Management Secretary Emilia T. Boncodin; and NPC OIC-President Rolando S. Quilala, NPB Resolutions
No. 2002-124 and No. 2002-125 are void and are of no legal effect.

Having determined that the assailed Resolutions are void as they lack the necessary number of votes for
their adoption, We no longer deem it necessary to pass upon the other issues raised in the instant petition

WHEREFORE, premises considered, National Power Board Resolutions No. 2002-124 and No. 2002-125
are hereby declared VOID and WITHOUT LEGAL EFFECT. The Petition for Injunction is
hereby GRANTED and respondents are hereby ENJOINED from implementing said NPB Resolutions No.
2002-124 and No. 2002-125.

496
SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

LOANZON CASES-PART III

EXECUTIVE DEPARTMENT

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.

COMELEC AND ESTRELLA C. ELAMPARO Respondents.

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

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.

COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court
with extremely urgent application for an ex parte issuance of temporary restraining order/status quo ante
order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the
Commission on Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC
En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and ( 4)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and
SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion

497
amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the
Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his
wife. Three days after, 6 September 1968, Emiliano reported and registered petitioner as a foundling with
the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live
Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.)
and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court
(MTC) of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's
name be changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe."
Although necessary notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the
court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second half
of 2005 that the lawyer who handled petitioner's adoption failed to secure from the OCR-Iloilo a new
Certificate of Live Birth indicating petitioner's new name and the name of her adoptive parents. 3 Without
delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted
to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary
Grace Natividad Sonora Poe.4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification
Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her
Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8 but she opted to continue her studies abroad and left for the United States of America (U.S.)
in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she
earned her Bachelor of Arts degree in Political Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both

498
the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with
her husband who was then based in the U.S., the couple flew back to the U.S. two days after the wedding
ceremony or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992.12 Her
two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on
10 July 1998 and 5 June 2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport No.
017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's
candidacy for President in the May 2004 elections. It was during this time that she gave birth to her
youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon
learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and eventually
expired. The petitioner stayed in the country until 3 February 2005 to take care of her father's funeral
arrangements as well as to assist in the settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In
her earnest desire to be with her grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of 2005.19 The couple began preparing
for their resettlement including notification of their children's schools that they will be transferring to
Philippine schools for the next semester;20 coordination with property movers for the relocation of their
household goods, furniture and cars from the U.S. to the Philippines;21 and inquiry with Philippine
authorities as to the proper procedure to be followed in bringing their pet dog into the country.22 As early
as 2004, the petitioner already quit her job in the U.S.23

Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as to
arrange the sale of their family home there.26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased
a condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second
half of 2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot

499
were issued by the Register of Deeds of San Juan City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the
family's remaining household belongings.29 She travelled back to the Philippines on 11 March 2006.30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change
and abandonment of their address in the U.S.31 The family home was eventually sold on 27 April 2006.32
Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006
and started working for a major Philippine company in July 2006.33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City
where they built their family home34 and to this day, is where the couple and their children have been
residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name by the
Register of Deeds of Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under the
same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship
together with petitions for derivative citizenship on behalf of her three minor children on 10 July 2006.37
As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and
declared that she is deemed to have reacquired her Philippine citizenship while her children are
considered as citizens of the Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in
petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She
also secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This passport was
renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA.42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and
Television Review and Classification Board (MTRCB).43 Before assuming her post, petitioner executed an
"Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American
Citizenship" before a notary public in Pasig City on 20 October 2010,44 in satisfaction of the legal
requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21 October 2010 petitioner submitted
the said affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB.47 From then on,
petitioner stopped using her American passport.48

500
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States."49 On that day, she accomplished
a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had taken her oath as
MTRCB Chairperson on 21 October 2010 with the intent, among others, of relinquishing her American
citizenship.50 In the same questionnaire, the petitioner stated that she had resided outside of the U.S.,
specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present.51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the
United States" effective 21 October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator
for the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period of residence
in the Philippines before May 13, 2013."53 Petitioner obtained the highest number of votes and was
proclaimed Senator on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her
COC, the petitioner declared that she is a natural-born citizen and that her residence in the Philippines up
to the day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May
2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship"
subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny
due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division.59 She is convinced that the COMELEC has jurisdiction over her petition.60 Essentially,
Elamparo's contention is that petitioner committed material misrepresentation when she stated in her
COC that she is a natural-born Filipino citizen and that she is a resident of the Philippines for at least ten
(10) years and eleven (11) months up to the day before the 9 May 2016 Elections.61

501
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born
Filipino on account of the fact that she was a foundling.62 Elamparo claimed that international law does
not confer natural-born status and Filipino citizenship on foundlings.63 Following this line of reasoning,
petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is
not a natural-born Filipino citizen to begin with.64 Even assuming arguendo that petitioner was a natural-
born Filipino, she is deemed to have lost that status when she became a naturalized American citizen.65
According to Elamparo, natural-born citizenship must be continuous from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in the
country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that
assuming arguendo that petitioner is qualified to regain her natural-born status under R.A. No. 9225, she
still fell short of the ten-year residency requirement of the Constitution as her residence could only be
counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also
on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the
belief that she failed to reestablish her domicile in the Philippines.67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo
warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the Department
of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if
hypothetically admitted, would make false the statement in her COC that she is a natural-born Filipino
citizen nor was there any allegation that there was a willful or deliberate intent to misrepresent on her
part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency
qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;

b. foundlings are presumed under international law to have been born of citizens of the place where they
are found;

502
c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for
President in the May 9, 2016 Elections and that the same is in full force and effect and has not been
withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as
May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No.
9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not
binding and should give way to evidence on her true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a
purely political question, that is, should she serve as the country's next leader.68

After the parties submitted their respective Memoranda, the petition was deemed submitted for
resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's
COC, filed for the purpose of running for the President of the Republic of the Philippines in the 9 May 2016
National and Local Elections, contained material representations which are false. The fallo of the aforesaid
Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or
Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President
of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69

503
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71 docketed as
SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify
her for the Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown
parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood
relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory construction
that what is not included is excluded. He averred that the fact that foundlings were not expressly included
in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to exclude them.74
Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that
foundlings have a nationality.76 According to Tatad, international conventions and treaties are not self-
executory and that local legislations are necessary in order to give effect to treaty obligations assumed by
the Philippines.77 He also stressed that there is no standard state practice that automatically confers
natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and
petitioner was not as she was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year
residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only from
the time she renounced her American citizenship which was sometime in 2010 or 2011.81 Additionally,
Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as evinced by the fact that
her husband stayed thereat and her frequent trips to the U.S.82

504
In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139
(DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a
natural-born citizen.83 He advanced the view that former natural-born citizens who are repatriated under
the said Act reacquires only their Philippine citizenship and will not revert to their original status as
natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only been a resident
of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates
against her. Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the
Philippines prior to her reacquisition of Philippine citizenship. In effect, his position was that petitioner
did not meet the ten (10) year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA No.
15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President
should be cancelled on the ground that she did not possess the ten-year period of residency required for
said candidacy and that she made false entry in her COC when she stated that she is a legal resident of
the Philippines for ten (10) years and eleven (11) months by 9 May 2016.86 Contreras contended that the
reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the
date when her petition to reacquire Philippine citizenship was approved by the BI.87 He asserted that
petitioner's physical presence in the country before 18 July 2006 could not be valid evidence of
reacquisition of her Philippine domicile since she was then living here as an American citizen and as such,
she was governed by the Philippine immigration laws.88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did
not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-
born status of petitioner which are not among the recognized grounds for the disqualification of a
candidate to an elective office.90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC.92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents.93
Otherwise stated, she has a presumption in her favor that she is a natural-born citizen of this country.

505
Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found.94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225
or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI
declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the decree of
adoption of San Juan RTC.97 She believed that all these acts reinforced her position that she is a natural-
born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of
choice in the Philippines as demonstrated by her children's resettlement and schooling in the country,
purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian
Hills.99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of domicile
are complied with.100 She reasoned out that there was no requirement that renunciation of foreign
citizenship is a prerequisite for the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a
mistake made in good faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner
is not a natural-born citizen, that she failed to complete the ten (10) year residency requirement, and that
she committed material misrepresentation in her COC when she declared therein that she has been a
resident of the Philippines for a period of ten (10) years and eleven (11) months as of the day of the
elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for the elective
position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.

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Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution.
On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari
with urgent prayer for the issuance of an ex parte temporary restraining order/status quo ante order
and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders were issued
by the Court enjoining the COMELEC and its representatives from implementing the assailed COMELEC
Resolutions until further orders from the Court. The Court also ordered the consolidation of the two
petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in
these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE
the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA
No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015
Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with
grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for
President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or

507
cancelled "on the exclusive ground" that she made in the certificate a false material representation. The
exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into
the issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet
undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same cancellation
case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section
2:

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

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and
barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to
other requirements, must present their platform or program of government; and accredit citizens' arms
of the Commission on Elections. Religious denominations and sects shall not be registered. Those which
seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be refused registration.

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Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their registration with the Commission, in
addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts
or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of
places where propaganda materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive,
order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section
17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the
House of Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under the party-list
system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns,

509
and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-
President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which

was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our guide. The citation in
Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be grounds
for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It
is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases
involving the right to vote, which essentially involves an inquiry into qualifications based on age, residence
and citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in § 12 and
§68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose of
barring an individual from becoming a candidate or from continuing as a candidate for public office. In a
word, their purpose is to eliminate a candidate from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or
the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is
to remove the incumbent from office.

510
Consequently, that an individual possesses the qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa.
We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of [the]
disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring the
ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured in
Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before
election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the very acts
for which his disqualification is being sought. That is why it is provided that if the grounds for
disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been voted for and he has won, either he will not
be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case,
his domicile, may take a long time to make, extending beyond the beginning of the term of the office. This
is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where
the determination of Aquino's residence was still pending in the COMELEC even after the elections of May
8, 1995. This is contrary to the summary character proceedings relating to certificates of candidacy. That
is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its
officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for
the position which they seek to fill, leaving the determination of their qualifications to be made after the
election and only in the event they are elected. Only in cases involving charges of false representations
made in certificates of candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President,
Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose
is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals

511
as "sole judges" under the Constitution of the election, returns and qualifications of members of Congress
of the President and Vice President, as the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the
amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be grounds
for disqualification may be disqualified from continuing as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a
competent court, guilty of, or found by the Commission to be suffering from any disqualification provided
by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of
Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent court
that the candidate sought to be disqualified "is guilty of or found by the Commission to be suffering from
any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the
other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must beforehand be established in a
prior proceeding before an authority properly vested with jurisdiction. The prior determination of
qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be cancelled

512
or denied due course on grounds of false representations regarding his or her qualifications, without a
prior authoritative finding that he or she is not qualified, such prior authority being the necessary measure
by which the falsity of the representation can be found. The only exception that can be conceded are self-
evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are, anyway,
bases equivalent to prior decisions against which the falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with,
as in this case, alleged false representations regarding the candidate's citizenship and residence, forced
the COMELEC to rule essentially that since foundlings108 are not mentioned in the enumeration of
citizens under the 1935 Constitution,109 they then cannot be citizens. As the COMELEC stated in oral
arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry. Oddly,
in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses
blood relationship with a Filipino citizen when "it is certain that such relationship is indemonstrable,"
proceeded to say that "she now has the burden to present evidence to prove her natural filiation with a
Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted
in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation.110
That said, there is more than sufficient evider1ce that petitioner has Filipino parents and is therefore a
natural-born Filipino. Parenthetically, the burden of proof was on private respondents to show that
petitioner is not a Filipino citizen. The private respondents should have shown that both of petitioner's
parents were aliens. Her admission that she is a foundling did not shift the burden to her because such
status did not exclude the possibility that her parents were Filipinos, especially as in this case where there
is a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether
such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce
belief in its existence or no-existence. Evidence on collateral matters shall not be allowed, except when it
tends in any reasonable degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that from
1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number
of Filipinos born in the country was 10,558,278. The statistical probability that any child born in the
Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner presented census

513
statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos
and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were
1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing
ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In
the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were
270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were 245,740
Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures.
Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was
found in 1968, the majority of the population in Iloilo was Filipino.112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City.1âwphi1 She also has typical Filipino
features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature
and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino features
is abandoned in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the
province would be a Filipino, would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible
under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of
the Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get
pregnant and leave their newborn babies behind. We do not face a situation where the probability is such
that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a foreigner.
We need to frame our questions properly. What are the chances that the parents of anyone born in the
Philippines would be foreigners? Almost zero. What are the chances that the parents of anyone born in
the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural
born Filipino children is 1:1357. This means that the statistical probability that any child born in the
Philippines would be a natural born Filipino is 99.93%.

514
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number
of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661.
This means that the statistical probability that any child born in the Philippines on that decade would be
a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident
that the statistical probability that a child born in the Philippines would be a natural born Filipino will not
be affected by whether or not the parents are known. If at all, the likelihood that a foundling would have
a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out of poverty or
perhaps, shame. We do not imagine foreigners abandoning their children here in the Philippines thinking
those infants would have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple has ever
considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one,
but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense.
Given the statistical certainty - 99.9% - that any child born in the Philippines would be a natural born
citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental
political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use
of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there
is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal Revenue,114 this
Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation
offered by the framers.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration. The following
exchange is recorded:

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Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural
children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:

[We] would like to request a clarification from the proponent of the amendment. The gentleman refers
to natural children or to any kind of illegitimate children?

Sr. Rafols:

To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.

Sr. Montinola:

For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is,
I refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory are
considered Spaniards, because the presumption is that a child of unknown parentage is the son of a
Spaniard. This may be applied in the Philippines in that a child of unknown parentage born in the
Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:

There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:

But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:

The amendment should read thus:

"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."

516
Sr. Briones:

The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:

The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:

Does the gentleman accept the amendment or not?

Sr. Rafols:

I do not accept the amendment because the amendment would exclude the children of a Filipina with a
foreigner who does not recognize the child. Their parentage is not unknown and I think those of overseas
Filipino mother and father [whom the latter] does not recognize, should also be considered as Filipinos.

President:

The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.

Sr. Busion:

Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:

Mr. President, my humble opinion is that these cases are few and far in between, that the constitution
need [not] refer to them. By international law the principle that children or people born in a country of
unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision on
the subject exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to the
notion that persons of "unknown parentage" are not citizens but only because their number was not
enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino

517
citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines,
and also foundlings; but this amendment was defeated primarily because the Convention believed that
the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them, should
be governed by statutory legislation. Moreover, it was believed that the rules of international law were
already clear to the effect that illegitimate children followed the citizenship of the mother, and that
foundlings followed the nationality of the place where they were found, thereby making unnecessary the
inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for
a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional
silence is by saying that it was the view of Montinola and Roxas which prevailed that there is no more
need to expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They can
even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were able to
convince their colleagues in the convention that there is no more need to expressly declare foundlings as
Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art.
IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by Chief Justice Fernando:
the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the records of the 1935, 1973 and
1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on
those who wish to use the constitution to discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all three
Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render

518
social justice. Of special consideration are several provisions in the present charter: Article II, Section 11
which provides that the "State values the dignity of every human person and guarantees full respect for
human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the enactment
of measures that protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities x x x" and Article XV, Section 3 which requires the State to defend the
"right of children to assistance, including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." Certainly,
these provisions contradict an intent to discriminate against foundlings on account of their unfortunate
status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the
first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides that
"[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are binding on citizens
of the Philippines even though living abroad." Adoption deals with status, and a Philippine adoption court
will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an
unidentified mother was sought to be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also over
the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art.
15) adheres to the theory that jurisdiction over the status of a natural person is determined by the latter's
nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being a citizen
of the Philippines, but not over the status of the petitioners, who are foreigners.120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-
Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country
Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption
of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and
this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and
include foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a
foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under
Article IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship." In the first place, "having to
perform an act" means that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the authorities.121 Secondly, the object
of the process is the determination of the whereabouts of the parents, not the citizenship of the child.

519
Lastly, the process is certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under
the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced
by a Foundling Certificate issued in her favor.122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to
Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's
status as a foundling.123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international
law can become part of the sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation.124 On the other hand, generally accepted principles
of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. Generally accepted principles of international law
include international custom as evidence of a general practice accepted as law, and general principles of
law recognized by civilized nations.125 International customary rules are accepted as binding as a result
from the combination of two elements: the established, widespread, and consistent practice on the part
of States; and a psychological element known as the opinionjuris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.126 "General principles of law recognized by civilized nations"
are principles "established by a process of reasoning" or judicial logic, based on principles which are "basic
to legal systems generally,"127 such as "general principles of equity, i.e., the general principles of fairness
and justice," and the "general principle against discrimination" which is embodied in the "Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation."128 These are the same core principles which underlie the Philippine
Constitution itself, as embodied in the due process and equal protection clauses of the Bill of Rights.129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State.130 Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

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The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the
UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the
right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and
their obligations under the relevant international instruments in this field, in particular where the child
would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR).
Article 24 thereof provide for the right of every child "to acquire a nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or
social origin, property or birth, the right, to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from
birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it
cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No.
473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years
old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions

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Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality
of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's
parentage is established, its nationality shall be determined by the rules applicable in cases where the
parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in
which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is found,
contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be
considered to have been born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is
not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights,
Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961
"United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of
the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the
"International Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled
that the proscription against enforced disappearances in the said convention was nonetheless binding as
a "generally accepted principle of international law." Razon v. Tagitis is likewise notable for declaring the
ban as a generally accepted principle of international law although the convention had been ratified by
only sixteen states and had not even come into force and which needed the ratification of a minimum of
twenty states. Additionally, as petitioner points out, the Court was content with the practice of
international and regional state organs, regional state practice in Latin America, and State Practice in the
United States.

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Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134
where only four countries had "either ratified or acceded to"135 the 1966 "Convention on the Recognition
and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was decided in
2005. The Court also pointed out that that nine member countries of the European Common Market had
acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition of
foreign judgments. In all, only the practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general principles
of law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ
Statute. Justice, fairness, equity and the policy against discrimination, which are fundamental principles
underlying the Bill of Rights and which are "basic to legal systems generally,"136 support the notion that
the right against enforced disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe
have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the
jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on
Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2
February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to presume foundlings as
having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly
refer to "Filipino children." In all of them, foundlings are among the Filipino children who could be
adopted. Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by law,
issued only to citizens. This shows that even the executive department, acting through the DFA, considers
foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution.
The presumption of natural-born citizenship of foundlings stems from the presumption that their parents
are nationals of the Philippines. As the empirical data provided by the PSA show, that presumption is at
more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of foundlings

523
were designed to address the plight of a defenseless class which suffers from a misfortune not of their
own making. We cannot be restrictive as to their application if we are a country which calls itself civilized
and a member of the community of nations. The Solicitor General's warning in his opening statement is
relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political status
or to accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No.
9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the
applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain
"Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes
in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the
other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include
Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation process that
restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on Audit,142 which cited
Tabasa v. Court of Appeals,143 where we said that "[t]he repatriation of the former Filipino will allow him
to recover his natural-born citizenship. Parreno v. Commission on Audit144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born
citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A.
No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may

524
be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even
if it had been once lost. It is not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected
in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of birth: "A
person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof."
Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court
pointed out that there are only two types of citizens under the 1987 Constitution: natural-born citizen
and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are only
two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance
with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the
absence in said enumeration of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-
born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by
the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through
naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As
such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always
revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v.
Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the condonation
doctrine, we cautioned that it "should be prospective in application for the reason that judicial decisions
applying or interpreting the laws of the Constitution, until reversed, shall form part of the legal system of
the Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it
should be, as a general rule, recognized as good law prior to its abandonment. Consequently, the people's
reliance thereupon should be respected."148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names
of her adoptive parents, and this misled the BI to presume that she was a natural-born Filipino. It has been
contended that the data required were the names of her biological parents which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption
is "to sever all legal ties between the biological parents and the adoptee, except when the biological
parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended

525
birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and which certificate
"shall not bear any notation that it is an amended issue."150 That law also requires that "[a]ll records,
books, and papers relating to the adoption cases in the files of the court, the Department [of Social
Welfare and Development], or any other agency or institution participating in the adoption proceedings
shall be kept strictly confidential."151 The law therefore allows petitioner to state that her adoptive
parents were her birth parents as that was what would be stated in her birth certificate anyway. And given
the policy of strict confidentiality of adoption records, petitioner was not obligated to disclose that she
was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case
for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false
material representation when she stated in her COC that she has before and until 9 May 2016 been a
resident of the Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day
before the 2016 elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner
must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the
requested information of "Period of Residence in the Philippines up to the day before May 09, 2016," she
put in "10 years 11 months" which according to her pleadings in these cases corresponds to a beginning
date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines.
There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2.
an intention to remain there; and 3. an intention to abandon the old domicile.152 To successfully effect a
change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide
intention of abandoning the former place of residence and establishing a new one and definite acts which
correspond with the purpose. In other words, there must basically be animus manendi coupled with
animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.153

526
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile
and relocated to the Philippines for good. These evidence include petitioner's former U.S. passport
showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-
mail correspondences starting in March 2005 to September 2006 with a freight company to arrange for
the shipment of their household items weighing about 28,000 pounds to the Philippines; e-mail with the
Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of
her children showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax
identification card for petitioner issued on July 2005; titles for condominium and parking slot issued in
February 2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February
2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March
2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from the
First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011
filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner
on 24 May 2005 and that she and her family stayed with affiant until the condominium was purchased);
and Affidavit from petitioner's husband (confirming that the spouses jointly decided to relocate to the
Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to sell the family
home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in
its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24
May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first
two requisites, namely, physical presence and animus manendi, but maintained there was no animus non-
revertendi.154 The COMELEC disregarded the import of all the evidence presented by petitioner on the
basis of the position that the earliest date that petitioner could have started residence in the Philippines
was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard,
COMELEC relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero v. COMELEC. 157
During the oral arguments, the private respondents also added Reyes v. COMELEC.158 Respondents
contend that these cases decree that the stay of an alien former Filipino cannot be counted until he/she
obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free entry under a balikbayan
stamp being insufficient. Since petitioner was still an American (without any resident visa) until her
reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be
counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In
Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by the
candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160 did not

527
involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship.
With the Court decreeing that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the
candidate admitted that his place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who had not even
reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not
sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents,
the Court had no choice but to hold that residence could be counted only from acquisition of a permanent
resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is
overwhelming and taken together leads to no other conclusion that she decided to permanently abandon
her U.S. residence (selling the house, taking the children from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess
items to the Salvation Army, her husband resigning from U.S. employment right after selling the U.S.
house) and permanently relocate to the Philippines and actually re-established her residence here on 24
May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying property here, constructing
a residence here, returning to the Philippines after all trips abroad, her husband getting employed here).
Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual
continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005
it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-
free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting
a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as temporary visitors
who must leave after one year. Included in the law is a former Filipino who has been naturalized abroad
and "comes or returns to the Philippines." 163 The law institutes a balikbayan program "providing the
opportunity to avail of the necessary training to enable the balikbayan to become economically self-reliant
members of society upon their return to the country"164 in line with the government's "reintegration
program."165 Obviously, balikbayans are not ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society,
it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one
year. That visa-free period is obviously granted him to allow him to re-establish his life and reintegrate
himself into the community before he attends to the necessary formal and legal requirements of
repatriation. And that is exactly what petitioner did - she reestablished life here by enrolling her children
and buying property while awaiting the return of her husband and then applying for repatriation shortly
thereafter.

528
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and
overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented.
There is no judicial precedent that comes close to the facts of residence of petitioner. There is no
indication in Coquilla v. COMELEC,166 and the other cases cited by the respondents that the Court
intended to have its rulings there apply to a situation where the facts are different. Surely, the issue of
residence has been decided particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled
that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015
COC was false because she put six ( 6) years and six ( 6) months as "period of residence before May 13,
2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine
resident only in November 2006. In doing so, the COMELEC automatically assumed as true the statement
in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC
as the period of residence as of the day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S. house was sold and her husband
returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that residence could
be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May
2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change which
the COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to
the day before May 09, 2016." The COMELEC would not have revised the query if it did not acknowledge
that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the
return of her husband is plausible given the evidence that she had returned a year before. Such evidence,
to repeat, would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a
COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put
seven (7) months as her period of residence where the required period was a minimum of one year. We
said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not an individual has satisfied the constitutions residency qualification

529
requirement." The COMELEC ought to have looked at the evidence presented and see if petitioner was
telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period of
residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically
returned here on 24 May 2005 not because it was false, but only because COMELEC took the position that
domicile could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006.
However, it does not take away the fact that in reality, petitioner had returned from the U.S. and was here
to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10) years and
eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The event from
which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006 under
R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner
recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United
Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the press.
Respondents have not disputed petitioner's evidence on this point. From that time therefore when Rep.
Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the circumstances
that surrounded the statement were already matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto.
Her Verified Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012
COC when she put in six ( 6) years and six ( 6) months as she misunderstood the question and could have
truthfully indicated a longer period. Her answer in the SET case was a matter of public record. Therefore,
when petitioner accomplished her COC for President on 15 October 2015, she could not be said to have
been attempting to hide her erroneous statement in her 2012 COC for Senator which was expressly
mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material
misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC.

530
Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a
material fact (eligibility and qualifications for elective office), but should evince a deliberate intent to
mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be made
with an intention to deceive the electorate as to one's qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced
dates all of which can evince animus manendi to the Philippines and animus non revertedi to the United
States of America. The veracity of the events of coming and staying home was as much as dismissed as
inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her COC for Senator"
which the COMELEC said "amounts to a declaration and therefore an admission that her residence in the
Philippines only commence sometime in November 2006"; such that "based on this declaration,
[petitioner] fails to meet the residency requirement for President." This conclusion, as already shown,
ignores the standing jurisprudence that it is the fact of residence, not the statement of the person that
determines residence for purposes of compliance with the constitutional requirement of residency for
election as President. It ignores the easily researched matter that cases on questions of residency have
been decided favorably for the candidate on the basis of facts of residence far less in number, weight and
substance than that presented by petitioner.169 It ignores, above all else, what we consider as a primary
reason why petitioner cannot be bound by her declaration in her COC for Senator which declaration was
not even considered by the SET as an issue against her eligibility for Senator. When petitioner made the
declaration in her COC for Senator that she has been a resident for a period of six (6) years and six (6)
months counted up to the 13 May 2013 Elections, she naturally had as reference the residency
requirements for election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator was made,
petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the general public
was never made aware by petitioner, by word or action, that she would run for President in 2016.
Presidential candidacy has a length-of-residence different from that of a senatorial candidacy. There are
facts of residence other than that which was mentioned in the COC for Senator. Such other facts of
residence have never been proven to be false, and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian
in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika
was enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their family
home in Corinthian Hills was completed.

531
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a
new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald
Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the
family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on
4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually
built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the
exclusive ground of false representation, to consider no other date than that mentioned by petitioner in
her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President
of the Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all,
deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent,
stating that:

532
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National
and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA
No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the
Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the
Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES.
The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the
First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES is
DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

G.R. No. 191988 August 31, 2010

533
ATTY. EVILLO C. PORMENTO, Petitioner,

vs.

JOSEPH "ERAP" EJERCITO ESTRADA and COMMISSION ON ELECTIONS, Respondents.

RESOLUTION

CORONA, C.J.:

What is the proper interpretation of the following provision of Section 4, Article VII of the Constitution:
"[t]he President shall not be eligible for any reelection?"

The novelty and complexity of the constitutional issue involved in this case present a temptation that
magistrates, lawyers, legal scholars and law students alike would find hard to resist. However, prudence
dictates that this Court exercise judicial restraint where the issue before it has already been mooted by
subsequent events. More importantly, the constitutional requirement of the existence of a "case" or an
"actual controversy" for the proper exercise of the power of judicial review constrains us to refuse the
allure of making a grand pronouncement that, in the end, will amount to nothing but a non-binding
opinion.

The petition asks whether private respondent Joseph Ejercito Estrada is covered by the ban on the
President from "any reelection." Private respondent was elected President of the Republic of the
Philippines in the general elections held on May 11, 1998. He sought the presidency again in the general
elections held on May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed private respondent’s
candidacy and filed a petition for disqualification. However, his petition was denied by the Second Division
of public respondent Commission on Elections (COMELEC).1 His motion for reconsideration was
subsequently denied by the COMELEC en banc.2

Petitioner filed the instant petition for certiorari3 on May 7, 2010. However, under the Rules of Court, the
filing of such petition would not stay the execution of the judgment, final order or resolution of the
COMELEC that is sought to be reviewed.4 Besides, petitioner did not even pray for the issuance of a
temporary restraining order or writ of preliminary injunction. Hence, private respondent was able to
participate as a candidate for the position of President in the May 10, 2010 elections where he garnered
the second highest number of votes.51avvphi1

534
Private respondent was not elected President the second time he ran. Since the issue on the proper
interpretation of the phrase "any reelection" will be premised on a person’s second (whether immediate
or not) election as President, there is no case or controversy to be resolved in this case. No live conflict of
legal rights exists.6 There is in this case no definite, concrete, real or substantial controversy that touches
on the legal relations of parties having adverse legal interests.7 No specific relief may conclusively be
decreed upon by this Court in this case that will benefit any of the parties herein.8 As such, one of the
essential requisites for the exercise of the power of judicial review, the existence of an actual case or
controversy, is sorely lacking in this case.

As a rule, this Court may only adjudicate actual, ongoing controversies.9 The Court is not empowered to
decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect
the result as to the thing in issue in the case before it.10 In other words, when a case is moot, it becomes
non-justiciable.11

An action is considered "moot" when it no longer presents a justiciable controversy because the issues
involved have become academic or dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the determination thereof has been overtaken by
subsequent events.12

Assuming an actual case or controversy existed prior to the proclamation of a President who has been
duly elected in the May 10, 2010 elections, the same is no longer true today. Following the results of that
elections, private respondent was not elected President for the second time. Thus, any discussion of his
"reelection" will simply be hypothetical and speculative. It will serve no useful or practical purpose.

Accordingly, the petition is denied due course and is hereby DISMISSED.

SO ORDERED.

RENATO C. CORONA

Chief Justice

G.R. No. 191618 November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.

535
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

DECISION

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that
questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progeny of Section 4,2 Article VII of the Constitution:

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

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

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

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

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

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

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

536
Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that "contests
involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, x x
x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the constitution of the
PET, with the designation of the Members of the Court as Chairman and Members thereof, contravenes
Section 12, Article VIII of the Constitution, which prohibits the designation of Members of the Supreme
Court and of other courts established by law to any agency performing quasi-judicial or administrative
functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment5 thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is
unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of the
well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR

BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS OF THE

PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12,
ARTICLE VIII OF THE 1987 CONSTITUTION.6

In his Reply,7 petitioner maintains that:

537
1. He has legal standing to file the petition given his averment of transcendental importance of the issues
raised therein;

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

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

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

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

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

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;

3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the case itself.8

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

538
Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

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

xxxx

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

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

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

xxxx

539
By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:

(1) cases involve constitutional issues;

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

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

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

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

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

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

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

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is

540
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had ubiquitously
appeared and had acknowledged its jurisdiction in 2004. His failure to raise a seasonable constitutional
challenge at that time, coupled with his unconditional acceptance of the Tribunal’s authority over the case
he was defending, translates to the clear absence of an indispensable requisite for the proper invocation
of this Court’s power of judicial review. Even on this score alone, the petition ought to be dismissed
outright.

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

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

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

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

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

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez
petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:

541
"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election, returns
and qualifications of the President or Vice President and may promulgate its rules for the purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after the
election and proclamation of a President or Vice President. There can be no "contest" before a winner is
proclaimed.16

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

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of Section
4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions should be
dismissed outright for prematurity. The Court has no jurisdiction at this point of time to entertain said
petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET) and
House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically and
exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all contests
relating to the election, returns, and qualifications" of the President and Vice-President, Senators, and
Representatives. In a litany of cases, this Court has long recognized that these electoral tribunals exercise
jurisdiction over election contests only after a candidate has already been proclaimed winner in an
election. Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal provide that, for President or
Vice-President, election protest or quo warranto may be filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain provisions
of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot claim ignorance of:
(1) the invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2) the unanimous
holding thereon. Unquestionably, the overarching framework affirmed in Tecson v. Commission on
Elections19 is that the Supreme Court has original jurisdiction to decide presidential and vice-presidential
election protests while concurrently acting as an independent Electoral Tribunal.

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

542
Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick.
But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to
promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive.
Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of
constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in J.M.
Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

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

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

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

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

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

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

543
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution
merely for the benefit of one person without considering that it could also affect others. When they
adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent
of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great
document.

On its face, the contentious constitutional provision does not specify the establishment of the PET. But
neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations which,
though unacceptable to petitioner, do not include his restrictive view – one which really does not offer a
solution.

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

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

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

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

544
be exercised under the government."

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

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

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

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

xxxx

MR. NOLLEDO. x x x.

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

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body

545
distinct and independent already from the House, and so with the Commission on Appointments also. It
will have the authority to promulgate its own rules.27

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

MR. SUAREZ. Thank you.

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

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This
is a judicial power.

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

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

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

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

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

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

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns

546
and qualifications of the President or Vice-President.

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

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

MR. VILLACORTA. That is right.

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

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

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

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

Before the passage of that republic act, in case there was any contest between two presidential candidates
or two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary to create a
Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not

547
an infringement on the separation of powers because the power being given to the Supreme Court is a
judicial power.31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as
restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed
the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its
rules of procedure for that purpose. To this, Justice Regalado forthwith assented and then emphasized
that the sole power ought to be without intervention by the legislative department. Evidently, even the
legislature cannot limit the judicial power to resolve presidential and vice-presidential election contests
and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET
in our country cannot be denied.32

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

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

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

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

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

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

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

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

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

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

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

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

These changes prompted the National Assembly to revive the PET by enacting, on December 3, 1985,
Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent Presidential Electoral

549
Tribunal to Try, Hear and Decide Election Contests in the Office of the President and Vice-President of the
Philippines, Appropriating Funds Therefor and For Other Purposes." This tribunal was composed of nine
members, three of whom were the Chief Justice of the Supreme Court and two Associate Justices
designated by him, while the six were divided equally between representatives of the majority and
minority parties in the Batasang Pambansa.

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

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

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

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

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to

constitutionalize what was statutory but it is not an infringement on the separation of powers because
the power being given to the Supreme Court is a judicial power.34

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

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article

550
VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The following
exchange in the 1986 Constitutional Commission should provide enlightenment:

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

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

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

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

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

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

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

xxxx

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

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

MR. SUAREZ. Thank you.

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

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This
is a judicial power.

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

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

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

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

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

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

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

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

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

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

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

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

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

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

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

MR. MAAMBONG. x x x.

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

xxxx

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

MR. AZCUNA. It is, Madam President.

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

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

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

554
MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our holding
in Lopez v. Roxas, et al.:42

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

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

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

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

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

555
Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original
jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts and,
appellate courts, without detracting from the fact that there is only one Supreme Court, one Court of
Appeals, and one court of first instance, clothed with authority to discharge said dual functions. A court
of first instance, when performing the functions of a probate court or a court of land registration, or a
court of juvenile and domestic relations, although with powers less broad than those of a court of first
instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too,
the Presidential Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although
the functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court in the
exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an
assumption by Congress of the power of appointment vested by the Constitution in the President. It
merely connotes the imposition of additional duties upon the Members of the Supreme Court.

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

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of Section 12,
Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC43 involved the
characterization of the enforcement and administration of a law relative to the conduct of a plebiscite
which falls under the jurisdiction of the Commission on Elections. However, petitioner latches on to the
enumeration in Buac which declared, in an obiter, that "contests involving the President and the Vice-
President fall within the exclusive original jurisdiction of the PET, also in the exercise of quasi-judicial
power."

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

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

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides
that the power "shall be vested in one Supreme Court and in such lower courts as may be established by
law." Consistent with our presidential system of government, the function of "dealing with the settlement

556
of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable
and enforceable" 44 is apportioned to courts of justice. With the advent of the 1987 Constitution, judicial
power was expanded to include "the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."45 The power was expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests as
essentially an exercise of judicial power.1avvphi1

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

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

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

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

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

We have previously declared that the PET is not simply an agency to which Members of the Court were
designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution
independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v. State
of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for the
exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional
Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a microscopic
view, like the petitioner’s, should not constrict an absolute and constitutional grant of judicial power.

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

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

G.R. No. 184740 February 11, 2010

DENNIS A. B. FUNA, Petitioner,

vs.

EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC. LEANDRO R. MENDOZA, in his
official capacity as Secretary of the Department of Transportation and Communications, USEC. MARIA
ELENA H. BAUTISTA, in her official capacities as Undersecretary of the Department of Transportation and
Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents.

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DECISION

VILLARAMA, JR., J.:

This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the
designation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the
Maritime Industry Authority (MARINA).

The Antecedents

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista
(Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice
Agustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department
under Special Order No. 2006-171 dated October 23, 2006.1

On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr.,
Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent
capacity as DOTC Undersecretary.2

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the
instant petition challenging the constitutionality of Bautista’s appointment/designation, which is
proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their
deputies and assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the
MARINA vice Vicente T. Suazo, Jr.3 and she assumed her duties and responsibilities as such on February
2, 2009.4

The Case

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA OIC is in
violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court in
Civil Liberties

559
Union v. Executive Secretary,5 and reiterated in Public Interest Center, Inc. v. Elma.6 He points out that
while it was clarified in Civil Liberties Union that the prohibition does not apply to those positions held in
ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC
Undersecretary, as can be gleaned from the provisions of its charter, Presidential Decree (P.D.) No. 474,7
as amended by Executive Order (EO) No. 125-A.8 Moreover, the provisions on the DOTC in the
Administrative Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide
any ex-officio role for the undersecretaries in any of the department’s attached agencies. The fact that
Bautista was extended an appointment naming her as OIC of MARINA shows that she does not occupy it
in an ex-officio capacity since an ex-officio position does not require any "further warrant or appoint."9

Petitioner further contends that even if Bautista’s appointment or designation as OIC of MARINA was
intended to be merely temporary, still, such designation must not violate a standing constitutional
prohibition, citing the rationale in Achacoso v. Macaraig.10 Section 13, Article VII of the 1987 Constitution
does not enumerate temporariness as one (1) of the exceptions thereto. And since a temporary
designation does not have a maximum duration, it can go on for months or years. In effect, the temporary
appointment/designation can effectively circumvent the prohibition. Allowing undersecretaries or
assistant secretaries to occupy other government posts would open a Pandora’s Box as to let them feast
on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet
be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the Acting
Administrator. Such would be the logical course, the said officers being in a better position in terms of
knowledge and experience to run the agency in a temporary capacity. Should none of them merit the
President’s confidence, then the practical remedy would be for Undersecretary Bautista to first resign as
Undersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact does not
receive or has waived any remuneration, the same does not matter because remuneration is not an
element in determining whether there has been a violation of Section 13, Article VII of the 1987
Constitution.11

Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA
Administrator. The reason is that with respect to the affairs in the maritime industry, the
recommendations of the MARINA may be the subject of counter or opposing recommendations from the
Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transport and
the OIC of MARINA have become one (1) and the same person. There is no more checking and counter-
checking of powers and functions, and therein lies the danger to the maritime industry. There is no longer
a person above the Administrator of MARINA who will be reviewing the acts of said agency because the
person who should be overseeing MARINA, the Undersecretary for Maritime Transport, has effectively
been compromised.12

Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can be
rendered moot through the expediency of simply revoking the temporary appointment/designation. But

560
since a similar violation can be committed in the future, there exists a possibility of "evading review," and
hence supervening events should not prevent the Court from deciding cases involving grave violation of
the 1987 Constitution, as this Court ruled in Public Interest Center. Notwithstanding its mootness
therefore, should it occur, there is a compelling reason for this case to be decided: the issue raised being
"capable of repetition, yet evading review."13

On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this
case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the
appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the
relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present
petition moot and academic. Petitioner’s prayer for a temporary restraining order or writ of preliminary
injunction is likewise moot and academic since, with this supervening event, there is nothing left to
enjoin.14

Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from the standard
set in Public Interest Center is the requirement that the party suing as a taxpayer must prove that he has
sufficient interest in preventing illegal expenditure of public funds, and more particularly, his personal and
substantial interest in the case. Petitioner, however, has not alleged any personal or substantial interest
in this case. Neither has he claimed that public funds were actually disbursed in connection with
respondent Bautista’s designation as MARINA OIC. It is to be noted that respondent Bautista did not
receive any salary while she was MARINA OIC. As to the alleged transcendental importance of an issue,
this should not automatically confer legal standing on a party.15

Assuming for the sake of argument that the legal question raised herein needs to be resolved, respondents
submit that the petition should still be dismissed for being unmeritorious considering that Bautista’s
concurrent designation as MARINA OIC and DOTC Undersecretary was constitutional. There was no
violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely
designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not
appointed MARINA Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA
Administrator was left vacant, and pending the appointment of permanent Administrator, respondent
Bautista was designated OIC in a temporary capacity for the purpose of preventing a hiatus in the
discharge of official functions. Her case thus falls under the recognized exceptions to the rule against
multiple offices, i.e., without additional compensation (she did not receive any emolument as MARINA
OIC) and as required by the primary functions of the office. Besides, Bautista held the position for four (4)
months only, as in fact when she was appointed MARINA Administrator on February 2, 2009, she
relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the
proscription on the holding of multiple offices.16

As to petitioner’s argument that the DOTC Undersecretary for Maritime Transport and MARINA
Administrator are incompatible offices, respondents cite the test laid down in People v. Green,17 which

561
held that "[T]he offices must subordinate, one [over] the other, and they must, per se, have the right to
interfere, one with the other, before they are compatible at common law." Thus, respondents point out
that any recommendation by the MARINA Administrator concerning issues of policy and administration
go to the MARINA Board and not the Undersecretary for Maritime Transport. The Undersecretary for
Maritime Transport is, in turn, under the direct supervision of the DOTC Secretary. Petitioner’s fear that
there is no longer a person above the Administrator of MARINA who will be reviewing the acts of said
agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded.18

In his Reply, petitioner contends that respondents’ argument on the incompatibility of positions was made
on the mere assumption that the positions of DOTC Undersecretary for Maritime Transport and the
administratorship of MARINA are "closely related" and is governed by Section 7, paragraph 2, Article IX-B
of the 1987 Constitution rather than by Section 13, Article VII. In other words, it was a mere secondary
argument. The fact remains that, incompatible or not, Section 13, Article VII still does not allow the herein
challenged designation.19

The sole issue to be resolved is whether or not the designation of respondent Bautista as OIC of MARINA,
concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been
appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members
and their deputies and assistants.

Our Ruling

The petition is meritorious.

Requisites for Judicial Review

The courts’ power of judicial review, like almost all other powers conferred by the Constitution, is subject
to several limitations, namely: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.20 Respondents
assert that the second requisite is absent in this case.

Generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury
is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable

562
action.21 The question on standing is whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional questions."22

In David v. Macapagal-Arroyo,23 summarizing the rules culled from jurisprudence, we held that taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:

(1) cases involve constitutional issues;

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

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

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

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

Petitioner having alleged a grave violation of the constitutional prohibition against Members of the
Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he
filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal
act by public officials.

The other objection raised by the respondent is that the resolution of this case had been overtaken by
events considering the effectivity of respondent Bautista’s appointment as MARINA Administrator
effective February 2, 2009 and her relinquishment of her former position as DOTC Undersecretary for
Maritime Transport.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case or dismiss it on ground of mootness.24 However, as we held in Public Interest

563
Center, Inc. v. Elma,25 supervening events, whether intended or accidental, cannot prevent the Court
from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening
events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues
raised to formulate controlling principles to guide the bench, bar, and public.26

As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an exception to the
rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading
review.27 In the present case, the mootness of the petition does not bar its resolution. The question of
the constitutionality of the President’s appointment or designation of a Department Undersecretary as
officer-in-charge of an attached agency will arise in every such appointment.28

Undersecretary Bautista’s designation as MARINA OIC falls under the stricter prohibition under Section
13, Article VII of the 1987 Constitution.

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the
1987 Constitution, which provides:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate
in any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the
conduct of their office.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

Sec. 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold
any other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.

In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO No. 284
issued by then President Corazon C. Aquino on July 25, 1987, which included Members of the Cabinet,

564
undersecretaries and assistant secretaries in its provisions limiting to two (2) the positions that appointive
officials of the Executive Department may hold in government and government corporations. Interpreting
the above provisions in the light of the history and times and the conditions and circumstances under
which the Constitution was framed, this Court struck down as unconstitutional said executive issuance,
saying that it actually allows them to hold multiple offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.

Noting that the prohibition imposed on the President and his official family is all-embracing, the
disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase
"in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of
Representatives from holding "any other office or employment in the Government"; and when compared
with other officials and employees such as members of the armed forces and civil service employees, we
concluded thus:

These sweeping, all-embracing prohibitions imposed on the President and his official family, which
prohibitions are not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces, are proof of the intent
of the 1987 Constitution to treat the President and his official family as a class by itself and to impose
upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family
was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers and, therefore, more checks and restraints
on them are called for because there is more possibility of abuse in their case."

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment
in the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13,
Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of
the Cabinet, their deputies and assistants.

xxxx

565
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on
the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used in
the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal
negation. The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of
Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.29
[EMPHASIS SUPPLIED.]

Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the
stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception
provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the
primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity,
which is the exception recognized in Civil Liberties Union.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
1987 Constitution was held inapplicable to posts occupied by the Executive officials specified therein,
without additional compensation in an ex-officio capacity as provided by law and as required by the
primary functions of said office. The reason is that these posts do not comprise "any other office" within
the contemplation of the constitutional prohibition but are properly an imposition of additional duties
and functions on said officials.30 Apart from their bare assertion that respondent Bautista did not receive
any compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her
designation as such OIC was in an ex-officio capacity as required by the primary functions of her office as
DOTC Undersecretary for Maritime Transport.

MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos on June 1, 1974.
It is mandated to undertake the following:

(a) Adopt and implement a practicable and coordinated Maritime Industry Development Program which
shall include, among others, the early replacement of obsolescent and uneconomic vessels;
modernization and expansion of the Philippine merchant fleet, enhancement of domestic capability for
shipbuilding, repair and maintenance; and the development of reservoir of trained manpower;

566
(b) Provide and help provide the necessary; (i) financial assistance to the industry through public and
private financing institutions and instrumentalities; (ii) technological assistance; and (iii) in general, a
favorable climate for expansion of domestic and foreign investments in shipping enterprises; and

(c) Provide for the effective supervision, regulation and rationalization of the organizational management,
ownership and operations of all water transport utilities, and other maritime enterprises.31

The management of MARINA is vested in the Maritime Administrator, who shall be directly assisted by
the Deputy Administrator for Planning and a Deputy Administrator for Operations, who shall be appointed
by the President for a term of six (6) years. The law likewise prescribes the qualifications for the office,
including such "adequate training and experience in economics, technology, finance, law, management,
public utility, or in other phases or aspects of the maritime industry," and he or she is entitled to receive
a fixed annual salary.32 The Administrator shall be directly responsible to the Maritime Industry Board,
MARINA’s governing body, and shall have powers, functions and duties as provided in P.D. No. 474, which
provides, under Sections 11 and 12, for his or her general and specific functions, respectively, as follows:

Sec. 11. General Powers and Functions of the Administrator. — Subject to the general supervision and
control of the Board, the Administrators shall have the following general powers, functions and duties;

a. To implement, enforce and apply the policies, programs, standards, guidelines, procedures, decisions
and rules and regulations issued, prescribed or adopted by the Board pursuant to this Decree;

b. To undertake researches, studies, investigations and other activities and projects, on his own initiative
or upon instructions of the Board, and to submit comprehensive reports and appropriate
recommendations to the Board for its information and action;

c. To undertake studies to determine present and future requirements for port development including
navigational aids, and improvement of waterways and navigable waters in consultation with appropriate
agencies;

d. To pursue continuing research and developmental programs on expansion and modernization of the
merchant fleet and supporting facilities taking into consideration the needs of the domestic trade and the
need of regional economic cooperation schemes; and

e. To manage the affairs of the Authority subject to the provisions of this Decree and applicable laws,

567
orders, rules and regulations of other appropriate government entities.

Sec. 12. Specific Powers and Functions of the Administrator. — In addition to his general powers and
functions, the Administrator shall;

a. Issue Certificate of Philippine Registry for all vessels being used in Philippine waters, including fishing
vessels covered by Presidential Decree No. 43 except transient civilian vessels of foreign registry, vessels
owned and/or operated by the Armed Forces of the Philippines or by foreign governments for military
purposes, and bancas, sailboats and other watercraft which are not motorized, of less than three gross
tons;

b. Provide a system of assisting various officers, professionals, technicians, skilled workers and seamen to
be gainfully employed in shipping enterprises, priority being given to domestic needs;

c. In collaboration and coordination with the Department of Labor, to look into, and promote
improvements in the working conditions and terms of employment of the officers and crew of vessels of
Philippine registry, and of such officers and crew members who are Philippine citizens and employed by
foreign flag vessels, as well as of personnel of other shipping enterprises, and to assist in the settlement
of disputes between the shipowners and ship operators and such officers and crew members and between
the owner or manager of other shipping enterprises and their personnel;

d. To require any public water transport utility or Philippine flag vessels to provide shipping services to
any coastal areas in the country where such services are necessary for the development of the area, to
meet emergency sealift requirements, or when public interest so requires;

e. Investigate by itself or with the assistance of other appropriate government agencies or officials, or
experts from the private sector, any matter within its jurisdiction, except marine casualties or accidents
which shall be undertaken by the Philippine Coast Guard;

f. Impose, fix, collect and receive in accordance with the schedules approved by the Board, from any
shipping enterprise or other persons concerned, such fees and other charges for the payment of its
services;

g. Inspect, at least annually, the facilities of port and cargo operators and recommend measures for
adherence to prescribed standards of safety, quality and operations;

568
h. Approve the sale, lease or transfer of management of vessels owned by Philippine Nationals to foreign
owned or controlled enterprises;

i. Prescribe and enforce rules and regulations for the prevention of marine pollution in bays, harbors and
other navigable waters of the Philippines, in coordination with the government authorities concerned;

j. Establish and maintain, in coordination with the appropriate government offices and agencies, a system
of regularly and promptly producing, collating, analyzing and disseminating traffic flows, port operations,
marine insurance services and other information on maritime matters;

k. Recommend such measures as may be necessary for the regulation of the importation into and
exportation from the Philippines of vessels, their equipment and spare parts;

l. Implement the rules and regulations issued by the Board of Transportation;

m. Compile and codify all maritime laws, orders, rules and regulations, decisions in leasing cases of courts
and the Authority’s procedures and other requirements relative to shipping and other shipping
enterprises, make them available to the public, and, whenever practicable to publish such materials;

n. Delegate his powers in writing to either of the Deputy Administrators or any other ranking officials of
the Authority; Provided, That he informs the Board of such delegation promptly; and

o. Perform such other duties as the Board may assign, and such acts as may be necessary and proper to
implement this Decree.

With the creation of the Ministry (now Department) of Transportation and Communications by virtue of
EO No. 546, MARINA was attached to the DOTC for policy and program coordination on July 23, 1979. Its
regulatory function was likewise increased with the issuance of EO No. 1011 which abolished the Board
of Transportation and transferred the quasi-judicial functions pertaining to water transportation to
MARINA. On January 30, 1987, EO No. 125 (amended by EO No. 125-A) was issued reorganizing the DOTC.
The powers and functions of the department and the agencies under its umbrella were defined, further
increasing the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise known as the
"The Domestic Shipping Development Act of 2004,"33 further strengthened MARINA’s regulatory powers
and functions in the shipping sector.

569
Given the vast responsibilities and scope of administration of the Authority, we are hardly persuaded by
respondents’ submission that respondent Bautista’s designation as OIC of MARINA was merely an
imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for Maritime Transport is not even a member of the
Maritime Industry Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as
Vice-Chairman, and the following as members: Executive Secretary (Office of the President), Philippine
Ports Authority General Manager, Department of National Defense Secretary, Development Bank of the
Philippines General Manager, and the Department of Trade and Industry Secretary.34

Finally, the Court similarly finds respondents’ theory that being just a "designation," and temporary at
that, respondent Bautista was never really "appointed" as OIC Administrator of MARINA, untenable. In
Binamira v. Garrucho, Jr.,35 we distinguished between the terms appointment and designation, as
follows:

Appointment may be defined as the selection, by the authority vested with the power, of an individual
who is to exercise the functions of a given office. When completed, usually with its confirmation, the
appointment results in security of tenure for the person chosen unless he is replaceable at pleasure
because of the nature of his office. Designation, on the other hand, connotes merely the imposition by
law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism
is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral
Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive
while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a
particular person to a specified public office. That is the common understanding of the term. However,
where the person is merely designated and not appointed, the implication is that he shall hold the office
only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the
designation is considered only an acting or temporary appointment, which does not confer security of
tenure on the person named.36 [emphasis supplied.]

Clearly, respondents’ reliance on the foregoing definitions is misplaced considering that the above-cited
case addressed the issue of whether petitioner therein acquired valid title to the disputed position and so
had the right to security of tenure. It must be stressed though that while the designation was in the nature
of an acting and temporary capacity, the words "hold the office" were employed. Such holding of office
pertains to both appointment and designation because the appointee or designate performs the duties
and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as
incompatible offices, refers to the holding of the office, and not to the nature of the appointment or

570
designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2,
Article IX-B. To "hold" an office means to "possess or occupy" the same, or "to be in possession and
administration,"37 which implies nothing less than the actual discharge of the functions and duties of the
office.1avvphi1

The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration of powers
in the Executive Department officials, specifically the President, Vice-President, Members of the Cabinet
and their deputies and assistants. Civil Liberties Union traced the history of the times and the conditions
under which the Constitution was framed, and construed the Constitution consistent with the object
sought to be accomplished by adoption of such provision, and the evils sought to be avoided or remedied.
We recalled the practice, during the Marcos regime, of designating members of the Cabinet, their deputies
and assistants as members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned or controlled corporations. This practice of holding
multiple offices or positions in the government led to abuses by unscrupulous public officials, who took
advantage of this scheme for purposes of self-enrichment. The blatant betrayal of public trust evolved
into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and
in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission
would draft into the proposed Constitution the provisions under consideration, which were envisioned to
remedy, if not correct, the evils that flow from the holding of multiple governmental offices and
employment.38 Our declaration in that case cannot be more explicit:

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of
the Cabinet, their deputies and assistants from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding other offices or employment in the government or
elsewhere is concerned.39 [emphasis supplied.]

Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the semantics of
respondents. It would open the veritable floodgates of circumvention of an important constitutional
disqualification of officials in the Executive Department and of limitations on the President’s power of
appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or
controlled corporations.

571
As to respondents’ contention that the concurrent positions of DOTC Undersecretary for Maritime
Transport and MARINA OIC Administrator are not incompatible offices, we find no necessity for delving
into this matter. Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG Chairman
Magdangal Elma in Public Interest Center, Inc. v. Elma.40 Therein we held that Section 13, Article VII is
not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a cabinet
member, undersecretary or assistant secretary.41

WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her
position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for
being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID.

No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

G.R. No. 191644 February 19, 2013

DENNIS A.B. FUNA, Petitioner,

vs.

CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT CAPACITIES AS ACTING
SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS ACTING SOLICITOR GENERAL, EXECUTIVE
SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT, Respondents.

DECISION

BERSAMIN, J.:

Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-President, the
Members of the Cabinet, and their deputies or assistants from holding any other office or employment

572
during their tenure unless otherwise provided in the Constitution. Complementing the prohibition is
Section 7, paragraph (2), Article IX-B of the 1987 Constitution, which bans any appointive official from
holding any other office or employment in the Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries, unless otherwise
allowed by law or the primary functions of his position.

These prohibitions under the Constitution are at the core of this special civil action for certiorari and
prohibition commenced on April 7, 2010 to assail the designation of respondent Hon. Alberto C. Agra,
then the Acting Secretary of Justice, as concurrently the Acting Solicitor General.

Antecedents

The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed Agra as
the Acting Secretary of Justice following the resignation of Secretary Agnes VST Devanadera in order to
vie for a congressional seat in Quezon Province; that on March 5, 2010, President Arroyo designated Agra
as the Acting Solicitor General in a concurrent capacity;1 that on April 7, 2010, the petitioner, in his
capacity as a taxpayer, a concerned citizen and a lawyer, commenced this suit to challenge the
constitutionality of Agra’s concurrent appointments or designations, claiming it to be prohibited under
Section 13, Article VII of the 1987 Constitution; that during the pendency of the suit, President Benigno S.
Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the
Solicitor General and commenced his duties as such on August 5, 2010.2

Agra renders a different version of the antecedents. He represents that on January 12, 2010, he was then
the Government Corporate Counsel when President Arroyo designated him as the Acting Solicitor General
in place of Solicitor General Devanadera who had been appointed as the Secretary of Justice;3 that on
March 5, 2010, President Arroyo designated him also as the Acting Secretary of Justice vice Secretary
Devanadera who had meanwhile tendered her resignation in order to run for Congress representing a
district in Quezon Province in the May 2010 elections; that he then relinquished his position as the
Government Corporate Counsel; and that pending the appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General.4

Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to holding the
two offices concurrently in acting capacities is settled, which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.

The Case

573
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition and mandamus brought by
herein petitioner assailing the constitutionality of the designation of then Undersecretary of the
Department of Transportation and Communications (DOTC) Maria Elena H. Bautista as concurrently the
Officer-in-Charge of the Maritime Industry Authority. The petitioner has adopted here the arguments he
advanced in Funa v. Ermita, and he has rested his grounds of challenge mainly on the pronouncements in
Civil Liberties Union v. Executive Secretary6 and Public Interest Center, Inc. v. Elma.7

What may differentiate this challenge from those in the others is that the appointments being hereby
challenged were in acting or temporary capacities. Still, the petitioner submits that the prohibition under
Section 13, Article VII of the 1987 Constitution does not distinguish between an appointment or
designation of a Member of the Cabinet in an acting or temporary capacity, on the one hand, and one in
a permanent capacity, on the other hand; and that Acting Secretaries, being nonetheless Members of the
Cabinet, are not exempt from the constitutional ban. He emphasizes that the position of the Solicitor
General is not an ex officio position in relation to the position of the Secretary of Justice, considering that
the Office of the Solicitor General (OSG) is an independent and autonomous office attached to the
Department of Justice (DOJ).8 He insists that the fact that Agra was extended an appointment as the
Acting Solicitor General shows that he did not occupy that office in an ex officio capacity because an ex
officio position does not require any further warrant or appointment.

Respondents contend, in contrast, that Agra’s concurrent designations as the Acting Secretary of Justice
and Acting Solicitor General were only in a temporary capacity, the only effect of which was to confer
additional duties to him. Thus, as the Acting Solicitor General and Acting Secretary of Justice, Agra was
not "holding" both offices in the strict constitutional sense.9 They argue that an appointment, to be
covered by the constitutional prohibition, must be regular and permanent, instead of a mere designation.

Respondents further contend that, even on the assumption that Agra’s concurrent designation
constituted "holding of multiple offices," his continued service as the Acting Solicitor General was akin to
a hold-over; that upon Agra’s designation as the Acting Secretary of Justice, his term as the Acting Solicitor
General expired in view of the constitutional prohibition against holding of multiple offices by the
Members of the Cabinet; that under the principle of hold-over, Agra continued his service as the Acting
Solicitor General "until his successor is elected and qualified"10 to "prevent a hiatus in the government
pending the time when a successor may be chosen and inducted into office;"11 and that during his
continued service as the Acting Solicitor General, he did not receive any salaries and emoluments from
the OSG after becoming the Acting Secretary of Justice on March 5, 2010.12

Respondents point out that the OSG’s independence and autonomy are defined by the powers and
functions conferred to that office by law, not by the person appointed to head such office;13 and that
although the OSG is attached to the DOJ, the DOJ’s authority, control and supervision over the OSG are
limited only to budgetary purposes.14

574
In his reply, petitioner counters that there was no "prevailing special circumstance" that justified the non-
application to Agra of Section 13, Article VII of the 1987 Constitution;15 that the temporariness of the
appointment or designation is not an excuse to disregard the constitutional ban against holding of
multiple offices by the Members of the Cabinet;16 that Agra’s invocation of the principle of hold-over is
misplaced for being predicated upon an erroneous presentation of a material fact as to the time of his
designation as the Acting Solicitor General and Acting Secretary of Justice; that Agra’s concurrent
designations further violated the Administrative Code of 1987 which mandates that the OSG shall be
autonomous and independent.17

Issue

Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of Acting
Solicitor General, violate the constitutional prohibition against dual or multiple offices for the Members
of the Cabinet and their deputies and assistants?

Ruling

The petition is meritorious.

The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting Solicitor
General was unconstitutional and void for being in violation of the constitutional prohibition under
Section 13, Article VII of the 1987 Constitution.

1.

Requisites of judicial review not in issue

The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have the
standing to assail the validity of the subject act or issuance, that is, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.18

575
Here, the OSG does not dispute the justiciability and ripeness for consideration and resolution by the
Court of the matter raised by the petitioner. Also, the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer to bring a suit of this nature has already been settled in his favor in rulings
by the Court on several other public law litigations he brought. In Funa v. Villar,19 for one, the Court has
held:

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a "direct injury"
as a result of a government action, or have a "material interest" in the issue affected by the challenged
official act. However, the Court has time and again acted liberally on the locus standi requirements and
has accorded certain individuals, not otherwise directly injured, or with material interest affected, by a
Government act, standing to sue provided a constitutional issue of critical significance is at stake. The rule
on locus standi is after all a mere procedural technicality in relation to which the Court, in a catena of
cases involving a subject of transcendental import, has waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been personally injured by the operation of a law or any other government act. In
David, the Court laid out the bare minimum norm before the so-called "non-traditional suitors" may be
extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;

3.) For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives
as legislators.

This case before Us is of transcendental importance, since it obviously has "far-reaching implications," and
there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous
cases. We, thus, assume a liberal stance and allow petitioner to institute the instant petition.20 (Bold
emphasis supplied)

In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as a taxpayer, a concerned

576
citizen and a lawyer because the issue raised therein involved a subject of transcendental importance
whose resolution was necessary to promulgate rules to guide the Bench, Bar, and the public in similar
cases.

But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the Solicitor
General during the pendency of this suit render this suit and the issue tendered herein moot and
academic?

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or value.22 Although the controversy
could have ceased due to the intervening appointment of and assumption by Cadiz as the Solicitor General
during the pendency of this suit, and such cessation of the controversy seemingly rendered moot and
academic the resolution of the issue of the constitutionality of the concurrent holding of the two positions
by Agra, the Court should still go forward and resolve the issue and not abstain from exercising its power
of judicial review because this case comes under several of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event meanwhile
rendered moot and academic if any of the following recognized exceptions obtained, namely: (1) there
was a grave violation of the Constitution; (2) the case involved a situation of exceptional character and
was of paramount public interest; (3) the constitutional issue raised required the formulation of
controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of
repetition, yet evading review.23

It is the same here. The constitutionality of the concurrent holding by Agra of the two positions in the
Cabinet, albeit in acting capacities, was an issue that comes under all the recognized exceptions. The issue
involves a probable violation of the Constitution, and relates to a situation of exceptional character and
of paramount public interest by reason of its transcendental importance to the people. The resolution of
the issue will also be of the greatest value to the Bench and the Bar in view of the broad powers wielded
through said positions. The situation further calls for the review because the situation is capable of
repetition, yet evading review.24 In other words, many important and practical benefits are still to be
gained were the Court to proceed to the ultimate resolution of the constitutional issue posed.

2.

Unconstitutionality of Agra’s concurrent designation as Acting Secretary of Justice and Acting Solicitor
General

At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution, viz:

577
Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate
in any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the
conduct of their office.

A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987 Constitution,
to wit:

Section 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold
any other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.

The differentiation of the two constitutional provisions was well stated in Funa v. Ermita,25 a case in which
the petitioner herein also assailed the designation of DOTC Undersecretary as concurrent Officer-in-
Charge of the Maritime Industry Authority, with the Court reiterating its pronouncement in Civil Liberties
Union v. The Executive Secretary26 on the intent of the Framers behind these provisions of the
Constitution, viz:

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment
in the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13,
Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of
the Cabinet, their deputies and assistants.

xxxx

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on
the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to

578
holding multiple offices or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used in
the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal
negation. The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of
Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. (Bold
emphasis supplied.)

Being designated as the Acting Secretary of Justice concurrently with his position of Acting Solicitor
General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra, whose text and spirit
were too clear to be differently read. Hence, Agra could not validly hold any other office or employment
during his tenure as the Acting Solicitor General, because the Constitution has not otherwise so
provided.27

It was of no moment that Agra’s designation was in an acting or temporary capacity. The text of Section
13, supra, plainly indicates that the intent of the Framers of the Constitution was to impose a stricter
prohibition on the President and the Members of his Cabinet in so far as holding other offices or
employments in the Government or in government-owned or government controlled-corporations was
concerned.28 In this regard, to hold an office means to possess or to occupy the office, or to be in
possession and administration of the office, which implies nothing less than the actual discharge of the
functions and duties of the office.29 Indeed, in the language of Section 13 itself, supra, the Constitution
makes no reference to the nature of the appointment or designation. The prohibition against dual or
multiple offices being held by one official must be construed as to apply to all appointments or
designations, whether permanent or temporary, for it is without question that the avowed objective of
Section 13, supra, is to prevent the concentration of powers in the Executive Department officials,
specifically the President, the Vice-President, the Members of the Cabinet and their deputies and
assistants.30 To construe differently is to "open the veritable floodgates of circumvention of an important
constitutional disqualification of officials in the Executive Department and of limitations on the President’s
power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and
assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-
owned or controlled corporations."31

According to Public Interest Center, Inc. v. Elma,32 the only two exceptions against the holding of multiple
offices are: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the
Vice President to become a member of the Cabinet; and (2) posts occupied by Executive officials specified
in Section 13, Article VII without additional compensation in ex officio capacities as provided by law and
as required by the primary functions of the officials’ offices. In this regard, the decision in Public Interest

579
Center, Inc. v. Elma adverted to the resolution issued on August 1, 1991 in Civil Liberties Union v. The
Executive Secretary, whereby the Court held that the phrase "the Members of the Cabinet, and their
deputies or assistants" found in Section 13, supra, referred only to the heads of the various executive
departments, their undersecretaries and assistant secretaries, and did not extend to other public officials
given the rank of Secretary, Undersecretary or Assistant Secretary.33 Hence, in Public Interest Center, Inc.
v. Elma, the Court opined that the prohibition under Section 13 did not cover Elma, a Presidential Assistant
with the rank of Undersecretary.34

It is equally remarkable, therefore, that Agra’s designation as the Acting Secretary of Justice was not in an
ex officio capacity, by which he would have been validly authorized to concurrently hold the two positions
due to the holding of one office being the consequence of holding the other. Being included in the stricter
prohibition embodied in Section 13, supra, Agra cannot liberally apply in his favor the broad exceptions
provided in Section 7, paragraph 2, Article IX-B of the Constitution ("Unless otherwise allowed by law or
the primary functions of his position") to justify his designation as Acting Secretary of Justice concurrently
with his designation as Acting Solicitor General, or vice versa. Thus, the Court has said –

[T]he qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless
the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the
President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure. Respondents’ interpretation that
Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when the highranking officials of
the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of
civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold
any other office or position in the government during their tenure.35

To underscore the obvious, it is not sufficient for Agra to show that his holding of the other office was
"allowed by law or the primary functions of his position." To claim the exemption of his concurrent
designations from the coverage of the stricter prohibition under Section 13, supra, he needed to establish
herein that his concurrent designation was expressly allowed by the Constitution. But, alas, he did not do
so.

To be sure, Agra’s concurrent designations as Acting Secretary of Justice and Acting Solicitor General did
not come within the definition of an ex officio capacity. Had either of his concurrent designations been in
an ex officio capacity in relation to the other, the Court might now be ruling in his favor.

The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v. Executive

580
Secretary,36 as follows:

x x x. The term ex officio means "from office; by virtue of office." It refers to an "authority derived from
official character merely, not expressly conferred upon the individual character, but rather annexed to
the official position." Ex officio likewise denotes an "act done in an official character, or as a consequence
of office, and without any other appointment or authority other than that conferred by the office." An ex
officio member of a board is one who is a member by virtue of his title to a certain office, and without
further warrant or appointment. x x x.

xxxx

The ex officio position being actually and in legal contemplation part of the principal office, it follows that
the official concerned has no right to receive additional compensation for his services in the said position.
The reason is that these services are already paid for and covered by the compensation attached to his
principal office. x x x.

Under the Administrative Code of 1987, the DOJ is mandated to "provide the government with a principal
law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice
system in accordance with the accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system; implement the laws on the
admission and stay of aliens, citizenship, land titling system, and settlement of land problems involving
small landowners and members of indigenous cultural minorities; and provide free legal services to
indigent members of the society."37 The DOJ’s specific powers and functions are as follows:

(1) Act as principal law agency of the government and as legal counsel and representative thereof,
whenever so required;

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system;

(3) Extend free legal assistance/representation to indigents and poor litigants in criminal cases and non-
commercial civil disputes;

(4) Preserve the integrity of land titles through proper registration;

581
(5) Investigate and arbitrate untitled land disputes involving small landowners and members of indigenous
cultural communities;

(6) Provide immigration and naturalization regulatory services and implement the laws governing
citizenship and the admission and stay of aliens;

(7) Provide legal services to the national government and its functionaries, including government-owned
or controlled corporations and their subsidiaries; and

(8) Perform such other functions as may be provided by law.38

On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor General the
following powers and functions, to wit:

The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring
the services of lawyers. When authorized by the President or head of the office concerned, it shall also
represent government owned or controlled corporations. The Office of the Solicitor General shall
discharge duties requiring the services of lawyers. It shall have the following specific powers and
functions:

1. Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts
or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in
his official capacity is a party.

2. Investigate, initiate court action, or in any manner proceed against any person, corporation or firm for
the enforcement of any contract, bond, guarantee, mortgage, pledge or other collateral executed in favor
of the Government. Where proceedings are to be conducted outside of the Philippines the Solicitor
General may employ counsel to assist in the discharge of the aforementioned responsibilities.

3. Appear in any court in any action involving the validity of any treaty, law, executive order or
proclamation, rule or regulation when in his judgment his intervention is necessary or when requested by
the Court.

582
4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship.

5. Represent the Government in all land registration and related proceedings. Institute actions for the
reversion to the Government of lands of the public domain and improvements thereon as well as lands
held in violation of the Constitution.

6. Prepare, upon request of the President or other proper officer of the National Government, rules and
guidelines for government entities governing the preparation of contracts, making investments,
undertaking of transactions, and drafting of forms or other writings needed for official use, with the end
in view of facilitating their enforcement and insuring that they are entered into or prepared conformably
with law and for the best interests of the public.

7. Deputize, whenever in the opinion of the Solicitor General the public interest requires, any provincial
or city fiscal to assist him in the performance of any function or discharge of any duty incumbent upon
him, within the jurisdiction of the aforesaid provincial or city fiscal. When so deputized, the fiscal shall be
under the control and supervision of the Solicitor General with regard to the conduct of the proceedings
assigned to the fiscal, and he may be required to render reports or furnish information regarding the
assignment.

8. Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor
General and appear or represent the Government in cased involving their respective offices, brought
before the courts and exercise supervision and control over such legal Officers with respect to such cases.

9. Call on any department, bureau, office, agency or instrumentality of the Government for such service,
assistance and cooperation as may be necessary in fulfilling its functions and responsibilities and for this
purpose enlist the services of any government official or employee in the pursuit of his tasks.

10. Departments, bureaus, agencies, offices, instrumentalities and corporations to whom the Office of the
Solicitor General renders legal services are authorized to disburse funds from their sundry operating and
other funds for the latter Office. For this purpose, the Solicitor General and his staff are specifically
authorized to receive allowances as may be provided by the Government offices, instrumentalities and
corporations concerned, in addition to their regular compensation.

11. Represent, upon the instructions of the President, the Republic of the Philippines in international
litigations, negotiations or conferences where the legal position of the Republic must be defended or
presented.

583
12. Act and represent the Republic and/or the people before any court, tribunal, body or commission in
any matter, action or proceedings which, in his opinion affects the welfare of the people as the ends of
justice may require; and

13. Perform such other functions as may be provided by law.39

The foregoing provisions of the applicable laws show that one position was not derived from the other.
Indeed, the powers and functions of the OSG are neither required by the primary functions nor included
by the powers of the DOJ, and vice versa. The OSG, while attached to the DOJ,40 is not a constituent unit
of the latter,41 as, in fact, the Administrative Code of 1987 decrees that the OSG is independent and
autonomous.42 With the enactment of Republic Act No. 9417,43 the Solicitor General is now vested with
a cabinet rank, and has the same qualifications for appointment, rank, prerogatives, salaries, allowances,
benefits and privileges as those of the Presiding Justice of the Court of Appeals.44

Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally demanding
tasks of the Secretary of Justice, is obviously too much for any one official to bear. Apart from the sure
peril of political pressure, the concurrent holding of the two positions, even if they are not entirely
incompatible, may affect sound government operations and the proper performance of duties. Heed
should be paid to what the Court has pointedly observed in Civil Liberties Union v. Executive Secretary: 45

Being head of an executive department is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a
department head’s ability and expertise, he should be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of responsibility, which may result
in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national and economic development,
far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin
and taking in more than what he can handle.

It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was not covered
by the stricter prohibition under Section 13, supra, due to such position being merely vested with a cabinet
rank under Section 3, Republic Act No. 9417, he nonetheless remained covered by the general prohibition
under Section 7, supra. Hence, his concurrent designations were still subject to the conditions under the
latter constitutional provision. In this regard, the Court aptly pointed out in Public Interest Center, Inc. v.
Elma:46

584
The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold
more than one office only if "allowed by law or by the primary functions of his position." In the case of
Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal objection to a government official occupying
two government offices and performing the functions of both as long as there is no incompatibility." The
crucial test in determining whether incompatibility exists between two offices was laid out in People v.
Green - whether one office is subordinate to the other, in the sense that one office has the right to
interfere with the other.

[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where one
office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent
and repugnant, there is not that incompatibility from which the law declares that the acceptance of the
one is the vacation of the other. The force of the word, in its application to this matter is, that from the
nature and relations to each other, of the two places, they ought not to be held by the same person, from
the contrariety and antagonism which would result in the attempt by one person to faithfully and
impartially discharge the duties of one, toward the incumbent of the other. X x x The offices must
subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other,
before they are incompatible at common law. x x x.

xxxx

While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and appointive
officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries, undersecretaries and
assistant secretaries. In the Resolution in Civil Liberties Union v. Executive Secretary, this Court already
clarified the scope of the prohibition provided in Section 13, Article VII of the 1987 Constitution. Citing the
case of US v. Mouat, it specifically identified the persons who are affected by this prohibition as
secretaries, undersecretaries and assistant secretaries; and categorically excluded public officers who
merely have the rank of secretary, undersecretary or assistant secretary.

Another point of clarification raised by the Solicitor General refers to the persons affected by the
constitutional prohibition. The persons cited in the constitutional provision are the "Members of the
Cabinet, their deputies and assistants." These terms must be given their common and general acceptation
as referring to the heads of the executive departments, their undersecretaries and assistant secretaries.
Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant Secretary are not
covered by the prohibition, nor is the Solicitor General affected thereby. (Italics supplied).

It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter
positions.

585
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered by the general prohibition under Section 7, Article
IX-B and his appointments must still comply with the standard of compatibility of officers laid down
therein; failing which, his appointments are hereby pronounced in violation of the Constitution.47

Clearly, the primary functions of the Office of the Solicitor General are not related or necessary to the
primary functions of the Department of Justice. Considering that the nature and duties of the two offices
are such as to render it improper, from considerations of public policy, for one person to retain both,48
an incompatibility between the offices exists, further warranting the declaration of Agra’s designation as
the Acting Secretary of Justice, concurrently with his designation as the Acting Solicitor General, to be void
for being in violation of the express provisions of the Constitution.

3.

Effect of declaration of unconstitutionality of Agra’s concurrent appointment; the de facto officer doctrine

In view of the application of the stricter prohibition under Section 13, supra, Agra did not validly hold the
position of Acting Secretary of Justice concurrently with his holding of the position of Acting Solicitor
General. Accordingly, he was not to be considered as a de jure officer for the entire period of his tenure
as the Acting Secretary of Justice. A de jure officer is one who is deemed, in all respects, legally appointed
and qualified and whose term of office has not expired.49

That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of Justice. In Civil
Liberties Union v. Executive Secretary,50 the Court said:

During their tenure in the questioned positions, respondents may be considered de facto officers and as
such entitled to emoluments for actual services rendered. It has been held that "in cases where there is
no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged
the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate
action recover the salary, fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual services rendered
in the questioned positions may therefore be retained by them.

586
A de facto officer is one who derives his appointment from one having colorable authority to appoint, if
the office is an appointive office, and whose appointment is valid on its face.51 He may also be one who
is in possession of an office, and is discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or informal, so that the incumbent is not a
mere volunteer.52 Consequently, the acts of the de facto officer are just as valid for all purposes as those
of a de jure officer, in so far as the public or third persons who are interested therein are concerned. 53

In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto Acting Secretary
of Justice, assuming that was his later designation, were presumed valid, binding and effective as if he
was the officer legally appointed and qualified for the office. 54 This clarification is necessary in order to
protect the sanctity of the dealings by the public with persons whose ostensible authority emanates from
the State. 55 Agra's official actions covered by this claritlcation extend to but are not limited to the
promulgation of resolutions on petitions for review filed in the Department of Justice, and the issuance of
department orders, memoranda and circulars relative to the prosecution of criminal cases.

WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition; ANNULS AND VOIDS the
designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a concurrent capacity with his
position as the Acting Solicitor General for being unconstitutional and violative of Section 13, Article VII of
the 1987 Constitution; and DECLARES that l-Ion. Alberto C. Agra was a de facto officer during his tenure
as Acting Secretary of Justice.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN

Associate Justice

ARTURO M. DE CASTRO,

Petitioner,

- versus -

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

Respondents.

587
x-----------------------x

JAIME N. SORIANO,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

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

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE

JUDICIARY,

ESTELITO P. MENDOZA,

Petitioner,

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

JOHN G. PERALTA,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC).

Respondent.

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

588
PETER IRVING CORVERA;

CHRISTIAN ROBERT S. LIM;

ALFONSO V. TAN, JR.;

NATIONAL UNION OF PEOPLES LAWYERS;

MARLOU B. UBANO;

INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past
President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR;

MITCHELL JOHN L. BOISER;

BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY
GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG
KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS;
TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES
MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA;
and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-

JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-

VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON.

Intervenors.

589
x - - - - - - - - - - - - - - - - - - - - - - - -x

ATTY. AMADOR Z. TOLENTINO, JR., (IBP

GovernorSouthern Luzon), and ATTY. ROLAND B. INTING

(IBP GovernorEastern Visayas),

Petitioners,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

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

PHILIPPINE BAR ASSOCIATION, INC.,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,

Respondents.

590
G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

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

591
G.R. No. 191149

G.R. No. 191342

G.R. No. 191420

Present:

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

March 17, 2010

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

DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the
coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to

592
many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15,
Article VII (Executive Department) of the Constitution prohibits the President or Acting President from
making appointments within two months immediately before the next presidential elections and up to
the end of his term, except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1),
Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme
Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the
incumbent President even during the period of the prohibition under Section 15, Article VII? Does
mandamus lie to compel the submission of the shortlist of nominees by the JBC?

Precs of the Consolidated Cases

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

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

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

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

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

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

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

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

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

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

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

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the JBC has
initiated the process of receiving applications for the position of Chief Justice and has in fact begun the
evaluation process for the applications to the position, and is perilously near completing the nomination
process and coming up with a list of nominees for submission to the President, entering into the period
of the ban on midnight appointments on March 10, 2010, which only highlights the pressing and

594
compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list,
especially if it will be cone within the period of the ban on midnight appointments.[14]

Antecedents

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

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

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

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

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

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

18 January 2010.

(sgd.)

MA. LUISA D. VILLARAMA

Clerk of Court &

Ex-Officio Secretary

Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published
for that purpose its announcement dated January 20, 2010,[16] viz:

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

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

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

595
Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice
the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio;
Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice
Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two
declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.[18]

Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon,
applied, but later formally withdrew his name from consideration through his letter dated February 8,
2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C.
Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate
Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with
conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.[19]
Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive
Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with
the Executive Officer of the JBC on February 8, 2010).[20]

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

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

Issues

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

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among
non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can
appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the
appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as

596
an administrative matter to avoid any possible polemics concerning the matter, but he opines that the
polemics leading to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted
in regard to the current controversy, and that unless put to a halt, and this may only be achieved by a
ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the
position of Chief Justice, may irreparably be impaired.[23]

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

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the constitutional question of whether the
incumbent President can appoint a Chief Justice during the election ban period?

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

G.R. No. 191032

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

G.R. No. 191057

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

b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members

597
of the Judiciary, may such appointments be excepted because they are impressed with public interest or
are demanded by the exigencies of public service, thereby justifying these appointments during the period
of prohibition?

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

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

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

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

G.R. No. 191149

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

G.R. No. 191342

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

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

598
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment
on the consolidated petitions, except that filed in G.R. No. 191342.

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

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

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

On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal
function under the Constitution to recommend appointees in the Judiciary; (b) the JBCs function to
recommend is a continuing process, which does not begin with each vacancy or end with each nomination,
because the goal is to submit the list of nominees to Malacaang on the very day the vacancy arises;[26]
the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of
selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by
Chief Justice Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who
has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the
phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as referring only
to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to
compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the
list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC
is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function

599
is executive, is not vested with the power to resolve who has the authority to appoint the next Chief
Justice and, therefore, has no discretion to withhold the list from the President; [29] and (e) a writ of
mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees,
considering that there is no imperative duty on its part to include in or exclude from the list particular
individuals, but, on the contrary, the JBCs determination of who it nominates to the President is an
exercise of a discretionary duty.[30]

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

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

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

600
constitutional mandate.[39]

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

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

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

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

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

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

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

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

(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman

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

601
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales
(Bello et al.); and

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

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

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

ice is imperative for the stability of the judicial system and the political situation in the country when the
election-related questions reach the Court as false, because there is an existing law on filling the void
brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of
1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an
acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief
Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was
intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the

602
Constitution on account of the settled practice; that the practice was followed under the 1987
Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice
Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief
Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used
by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v.
Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has
been repeatedly observed and has become a part of its tradition.

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

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

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds
of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments
by the President of the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the
appointments in the Executive Department, but also to judicial appointments, contrary to the submission
of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the
prohibition as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief
Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief
Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at
any rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to
refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSAs prayer that
the Court pass a resolution declaring that persons who manifest their interest as nominees, but with

603
conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the
body of its petition; that such glaring inconsistency between the allegations in the body and the relief
prayed for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be separated
from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the
rule of law, that is, to submit the list of nominees only to the next duly elected President after the period
of the constitutional ban against midnight appointments has expired.

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

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

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

Thus, we resolve.

Ruling of the Court

604
Locus Standi of Petitioners

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

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

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

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

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

605
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the issues
raised by the petition due to their far-reaching implications, even if the petitioner had no personality to
file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several
notable cases, permitting ordinary citizens, legislators, and civic

organizations to bring their suits involving the constitutionality or validity of laws, regulations, and
rulings.[53]

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

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

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

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

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

606
cases.[60]

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

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

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the
controversy as to vest them with the requisite locus standi. The issues before us are of transcendental
importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect
everyone (including the petitioners), regardless of ones personal interest in life, because they concern
that great doubt about the authority of the incumbent President to appoint not only the successor of the
retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers
from a far too great number of vacancies in the ranks of trial judges throughout the country.

In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of
any petitioner when the matter involved has transcendental importance, or otherwise requires a
liberalization of the requirement.[62]

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

607
raised.[64]

Justiciability

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

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

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

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

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

608
absence of an actual case or controversy.

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

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

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

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

609
Substantive Merits

Prohibition under Section 15, Article VII does not apply

to appointments to fill a vacancy in the Supreme Court

or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

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

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

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

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

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

The Court agrees with the submission.

610
First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted
time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that
the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically
done by the framers, but purposely made to reflect their intention and manifest their vision of what the
Constitution should contain.

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

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

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

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

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

611
within two months before the next presidential elections and up to the end of the Presidents or Acting
Presidents term does not refer to the Members of the Supreme Court.

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

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

V . Intent of the Constitutional Commission

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

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

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this
Court) to add to what is now Section 9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER

612
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION
OF THE LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose
was to provide a uniform rule for lower courts. According to him, the 90-day period should be counted
from submission of the list of nominees to the President in view of the possibility that the President might
reject the list submitted to him and the JBC thus need more time to submit a new one.

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

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

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

MR. CONCEPCION. Yes.

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

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the
Court had a complete complement.[70]

Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a
duty that may be enforced[71] should not be disregarded. Thereby, Sections 4(1) imposes on the President
the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the

613
occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the
Constitution.

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

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

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

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

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

614
interpretation that defeats the intent of the framers.[73]

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

We reverse Valenzuela.

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

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

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

xxx

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

The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and appointee's
qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the
planned induction of almost all of them in a few hours before the inauguration of the new President may,

615
with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken
being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new administration of an opportunity to make the corresponding
appointments.

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

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

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

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

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that
the Constitutional Commission confined the prohibition to appointments made in the Executive
Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because
their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial

616
positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be
midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in
haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration
out of a desire to subvert the policies of the incoming President or for partisanship,[77] the appointments
to the Judiciary made after the establishment of the JBC would not be suffering from such defects because
of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or
meaning of the enactment, because the reason for the enactment must necessarily shed considerable
light on the law of the statute, i.e., the intent; hence, the enactment should be construed with reference
to its intended scope and purpose, and the court should seek to carry out this purpose rather than to
defeat it.[78]

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

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was
confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to
discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court
of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the
(Constitutional) Commissions records, the election ban had no application to appointments to the Court
of Appeals.[79] This confirmation was accepted by the JBC, which then submitted to the President for
consideration the nominations for the eight vacancies in the Court of Appeals.[80]

The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of
Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the
framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt
about the Presidents power to appoint during the period of prohibition in Section 15, Article VII could
have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged
and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice
Regalado.

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

617
Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting
President,[81] and evidently refers only to appointments in the Executive Department. It has no
application to appointments in the Judiciary, because temporary or acting appointments can only
undermine the independence of the Judiciary due to their being revocable at will.[82] The letter and spirit
of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the
revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of
the first and second level courts and the Justices of the third level courts may only be removed for cause,
but the Members of the Supreme Court may be removed only by impeachment.

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

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

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

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President
to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section

618
4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1),
Article VIII remaining.

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

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

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

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

Sec. 9, Article VIII says:

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

xxx

619
The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a
non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of
those who are already members or sitting justices of the Court, all of whom have previously been vetted
by the JBC.

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

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

II

The Judiciary Act of 1948

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

Section 12 of the Judiciary Act of 1948 states:

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

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

620
Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed.

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

We cannot agree with the posture.

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

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

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

Historically, under the present Constitution, there has been no wide gap between the retirement and the
resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office

621
of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of
succession is as follows:

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

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

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

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

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

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

III

Writ of mandamus does not lie against the JBC

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

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

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right

622
to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated
by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to
be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.

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

Section 8. xxx

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

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

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

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

Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a
vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day
period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President
after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the
President to make the appointment. For the JBC to do so will be unconscionable on its part, considering
that it will thereby effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making
the appointment.

623
The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day
period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be
submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus
herein should only refer to the duty to submit to the President the list of nominees for every vacancy in
the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay
in performing that duty.[88] For mandamus to lie against the JBC, therefore, there should be an
unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to
the President.

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

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

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

IV

Writ of prohibition does not lie against the JBC

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

624
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The
challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation
of a vote each to the ex officio members from the Senate and the House of Representatives, thereby
prejudicing the chances of some candidates for nomination by raising the minimum number of votes
required in accordance with the rules of the JBC, is not based on the petitioners actual interest, because
they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the
Judiciary. Thus, the petitioners lack locus standi on that issue.

WHEREFORE, the Court:

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

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

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

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

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

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

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

SO ORDERED.

625
LUCAS P. BERSAMIN

Associate Justice

G.R. No. 203372 June 16, 2015

ATTY. CHELOY E. VELICARIAGARAFIL, Petitioner,

vs.

OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.

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

G.R. No. 206290

ATTY. DINDO G. VENTURANZA, Petitioner,

vs.

OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity as the Secretary of the Department of
Justice, CLARO A. ARELLANO, in his capacity as the Prosecutor General, and RICHARD ANTHONY D.
FADULLON, in his capacity as the Officer-in-Charge of the Office of the City Prosecutor of Quezon City,
Respondents.

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

G.R. No. 209138

IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners,

vs.

COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents.

626
x-----------------------x

G.R. No. 212030

EDDIE U. TAMONDONG, Petitioner,

vs.

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J.:

I was the original Member-in-Charge assigned to this case and in this capacity, submitted a draft Opinion
to the Court, which draft the Court did not approve in an 8 to 6 vote in favor of the present ponente.

Due to the close 8-6 vote, I find it appropriate to simply reiterate in this Concurring and Dissenting Opinion
the legal arguments and positions that I had originally submitted to the Court en bane for its
consideration.

The present consolidated cases stemmed from the petitioners' presidential appointments that were
revoked pursuant to Executive Order (E. O.) No. 2, entitled "Recalling, Withdrawing and Revoking
Appointments Issued by the Previous Administration in Violation of the Constitutional Ban on Midnight
Appointments and for Other Purposes, " issued by President Benigno S. Aquino, III

Directly at issue, as framed and presented by the petitioners and as counter-argued by the respondents,
is the validity of Section l(a) of EO No. 2 in relation with the constitutional ban on midnight appointments
under Section 15, Article VII of the Constitution.

I concur with the ponencia's findings that the petitions for review on certiorari should be denied and the
petition for certiorari should be dismissed as I will discuss below.

627
I object, however, to the ponencia' s arguments and conclusions to support the conclusion that the phrase,
"including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or
taken his oath, or assumed public office on or after March 11, 2010" in Section l(a) of E.O. No. 2, is valid.
In my view, Executive Order No. 2, by incorporating this phrase, should be declared partially
unconstitutional for unduly expanding the scope of the prohibition on presidential appointments under
Section 15, Article VII of the Constitution.

This constitutional provision provides that: "[t]wo months immediately before the next presidential
elections and up to the end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety. "

According to the ponencia, the term "appointments" contemplated in Section 15, Article VII pertains to
appointment as a process - i.e., from the signing of the appointment, to its issuance and to the appointee's
acceptance - rather than being confined solely to the President's exercise of his appointing power or to
the acts that are under the President's control in the totality of the appointment process.

Under this latter view, only the signing of the appointment and its issuance should be covered by the
constitutional ban; when these presidential actions are completed before the ban sets in, then the
appointee can take his oath and assume office even after the ban has set in.

The plain textual language of Section 15, Article VII is clear and requires no interpretation of the term
"appointments." The prohibition under this constitutional provision pertains to the President's
discretionary executive act of determining who should occupy a given vacant position; it does not cover
other actions in the appointment process, specifically, the discretionary determination of whether or not
to accept the position which belongs to the appointee.

In fact, Section 15, Article VII of the 1987 Constitution is directed only against an outgoing President and
against no other. By providing that the President shall not make appointments within the specified period,
the Constitution could not have barred the President from doing acts that are not within his power to
accomplish as appointing authority, such as the acts required or expected of the appointee. Notably, the
appointee's acts are not even alluded to or mentioned at all in this constitutional provision.

By interpreting the term "appointments" as a process, the ponencia effectively undertook judicial
legislation by expanding the limitation on the President's appointment power under Section 15, Article
VII; it applied the concept of appointment as a process despite the otherwise clear and unambiguous

628
reference of this constitutional provision to appointment as an executive act.

For these reasons, I maintain my position that for an appointment to be valid under Section 15, Article VII,
the appointment papers must have already been signed, issued or released prior to the constitutional
ban, addressed to the head of the office concerned or the appointee himself. Once this is accomplished,
the appointee's acceptance through an oath, assumption of office, or any positive act need not be done
before the constitutional ban.

Thus, the phrase in Section l (a) of E.O. No. 2 that states "including all appointments bearing dates prior
to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or
after March 11, 2010" should be held unconstitutional as it unduly expands the scope of the prohibition
on presidential appointments under Section 15, Article VII of the Constitution.

I elaborate on all these arguments in the following discussions.

THE CASES

Before the Court are three petitions for review on certiorari1 and one petition for certiorari2 that have
been consolidated because they raise a common question of law, i.e., the validity of the President's
issuance of E.O. No. 2 dated July 30, 2010.

The petitioners seek the reversal of the Court of Appeals' decision3 that separately dismissed their
petitions and upheld the constitutionality of E.O. No. 2.

FACTUAL ANTECEDENTS

A. The Petitions

a. G.R. No. 203372

On February 14, 2010, Atty. Cheloy E. Velicaria-Garafil (Garafil), then a prosecutor at the Department of
Justice (DOJ), applied. for a lawyer position in the Office of the Solicitor General (OSG).4 In an appointment
letter dated March 5, 2010, President Gloria Macapagal-Arroyo (PGMA) appointed Garafil to the position

629
of State Solicitor II at the OSG.5

Although there was a transmittal letter from the Office of the Executive Secretary (DES) to the DOJ,6 the
letter failed to state when it (together with the appointment paper) was actually sent to (and received by)
the DOJ.7

On March 22, 2010, Garafil took her oath of office. On April 6, 2010, she assumed office after winding up
her work and official business with the DOJ.8

For unknown reasons, Garafil's appointment paper was not officially released through the Malacañang
Records Office (MRO). The OES merely turned over Garafil's appointment papers to the MRO on May 13,
2010.9

b. G.R.No.206290

Atty. Dindo Venturanza (Venturanza) rose from the ranks at the DOJ, eventually becoming a Prosecutor
III on July 26, 2005. After PGMA appointed then Quezon City Prosecutor Claro Arellano as the new
Prosecutor General, Venturanza applied for the position that Claro Arellano vacated.10

As in the case of Garafil, PGMA issued Venturanza an appointment letter dated February 23, 201011 as
City Prosecutor of Quezon City. Upon verbal advice of his promotion from the Malacañang, Venturanza
immediately secured the necessary clearances.12

On March 12, 2010, the OES forwarded Venturanza's original appointment letter and transmittal letter
dated March 9, 2010, to the MRO. Also on March 12, 2010, then DOJ Secretary Alberto Agra officially
received Venturanza' s appointment paper and transmittal letter from the MRO.13 On March 15, 2010,
Venturanza took his oath and assumed his duties as City Prosecutor of Quezon City.14

c. G.R. No. 209138

PGMA issued Irma Villanueva (Villanueva) an appointment letter dated March 3, 2010,15 as Administrator
for Visayas of the Board of Administrators of the Cooperative Development Authority. POMA also issued
Francisca Rosquita (Rosquita) an appointment letter dated March 5, 201016 as Commissioner of the
National Commission on Indigenous Peoples. Villanueva and Rosquita took their oaths of office on April

630
13, 2010, and March 18, 2010, respectively.17 Like Garafil, the appointment papers and transmittal letters
of Villanueva and Rosquita (both dated March 8, 201018) were not coursed through, but were merely
turned over to the MRO later on May 4, 2010, and May 13, 2010, respectively.19

d. G.R. No. 212030

Atty. Eddie U. Tamondong (Tamondong) served as acting director of the Subic Bay Metropolitan Authority
(SBMA) starting January 16, 2008.20 After more than two years of continuous (but acting) service in this
position, POMA issued him an appointment letter dated March 1, 2010,21 as a regular member of the
SBMA's board of directors.

On March 25, 2010, Tamondong received his appointment letter through the office of the SBMA
Chairman. On the same date, he took his oath of office before SBMA Chairman Feliciano O. Salonga and
assumed his SBMA post, this time in a regular capacity.22

As had happened to the other petitioners, Tamondong's letter of appointment was not coursed through
the MRO. The MRO only received the letter on May 6, 2010, more than two months after his
appointment.23

B. Issuance of E.O. No. 2

On June 30, 2010, President Benigno S. Aquino III took his oath of office as the 15th President of the
Republic of the Philippines. On August 4, 2010, Malacañang issued E.O. No. 2 whose salient portions read:

SECTION 1. Midnight Appointments Defined. - The following appointments made by the former President
and other appointing authorities in departments, agencies, offices, and 'instrumentalities, including
government-owned or -controlled corporations, shall be considered as midnight appointments:

(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11,
2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11,
2010, except temporary appointments in the executive positions when continued vacancies will prejudice
public service or endanger public safety as may be determined by the appointing authority.

(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that

631
would be vacant only after March 11, 2010.

(c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections
in violation of Section 261 of the Omnibus Election Code.

SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as

defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise
affected are hereby declared vacant.

SECTION 3. Temporary designations. - When necessary to maintain efficiency in public service and ensure
the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC)
to perform the duties and discharge the responsibilities of any of those whose appointment has been
recalled, until the replacement of the OIC has been appointed and qualified.

C. Subsequent Events

The present predicament of Garafil, Venturanza, Villanueva, Rosquita and Tamondong (petitioners)
started with the issuance of E.O. No. 2.

a. The present petitioners

i. G.R. No. 203372 (Atry. Garafil)

Then Solicitor General, Anselmo Cadiz, informed all OSG officers/employees affected by E.O. No. 2 that
their appointments had been recalled effective August 7, 2010. Since Garafil' s appointment fell within
the definition of midnight appointment under E.O. No. 2, Garafil was removed from the OSG. On August
9, 2010, upon reporting for work, she was apprised of the revocation of her appointment as State Solicitor
II due to the implementation of E.O. No. 2.24

ii. G.R. No. 206290 (Atty. Venturanza)

On September 1, 2010, Venturanza received a copy of Department Order (D.O.) No. 566 issued by DOJ
Secretary Leila de Lima. Q.O. No. 566 designated Senior Deputy State Prosecutor Richard Anthony

632
Fadullon (Fadullon) as Officer in Charge in the Office of the City Prosecutor, Quezon City. On September
15, 2010, Venturanza wrote separate letters (i) to DOJ Sec. de Lima protesting the designation of Fadullon,
and (ii) to President Aquino seeking the re-affirmation of his promotion as City Prosecutor.

DOJ Sec. de Lima informed Veturanza that he is covered by E.O. No. 2; thus, he should not further perform
his functions as Quezon City Prosecutor.25 Records fail to show if the President acted at all on Veturanza's
letter.

iii. G.R. No. 209138 (Villanueva and Rosquita)

Rosquita's appointment was recalled through the October 1, 2010 memorandum of Executive Secretary
Paquito Ochoa.26 Villanueva's and Rosquita's salaries had also been withheld starting August 1, 2010.27

iv. G.R. No. 212030 (Atty. Tamondong)

In view of the mounting public interest in PGMA's alleged midnight appointments, Tamondong took
another oath of office on July 6, 2010, as an added precaution. Notwithstanding this move, Tamondong
was removed from his position as a regular member of the SBMA board of directors effective July 30,
2010.28

b. The earlier petitions before the Court

The petitioners and several others filed separate petitions29 and motions for intervention30 before the
Court assailing the constitutionality of E.O. No. 2. In a resolution dated January 31, 2012, the Court defined
the issues raised in these petitions as follows:

1. Whether the appointment of the petitioners and intervenors were midnight appointments within the
coverage of EO 2;

2. Whether all midnight appointments, including those of the petitioners and intervenors, were invalid;

3. Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith;

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4. Whether the appointments of the petitioners and intervenors were irregularly made; and

5. Whether EO 2 violated the Civil Service Rules on Appointment.31

Because the issues raised "will require the assessment of different factual circumstances attendant to
each of the appointments made,"32 the Court decided to refer the petitions to the Court of Appeals (CA)
to "resolve all pending matters and applications, and to decide the issues as if these cases have been
originally commenced"33 with the CA.34

CA RULING

In four separate decisions, the CA upheld the constitutionality of E.O. No. 2, ruling that the E.O. is
consistent with the rationale of Section 15, Article VII of preventing the outgoing President from abusing
his appointment prerogative and allowing the incoming President to appoint the people who will execute
his policies. To give meaning to this intent, the CA departed from the literal wording of the provision by
construing the term "appointment" as a process that includes the appointee's acceptance of the
appointment.

The CA likewise found no violation of the petitioners' right to due process since no one has a vested right
to public office.35 Although the CA upheld. the constitutionality of E.O. No. 2 and the application of its
provisions to the petitioners, it expressed dismay over the "sweeping and summary invalidation of all the
appointments made by the former administration without regard to the circumstances"36 attendant to
each case.

Citing Sales v. Carreon,37 the CA ruled that not all midnight appointments are invalid; the nature,
character, and merits of each individual appointment must be taken into account.

The CA, however, doubted its authority to evaluate the petitioners' appointments (particularly their
qualifications and merits) and referred the matter to the Office of the President to determine whether to
uphold the petitioners' appointments.

The petitioners manifested their objections to the CA rulings through the present petitions.

634
THE PETITIONS

The petitioners raised identical arguments in their bid to nullify E.O. No. 2 and to uphold their respective
appointments.38 These arguments can be summarized as follows:

First, Section 15, Article VII only prohibits the President from "making" an appointment within the
prohibited period.39 According to Garafil, an appointment is already complete when the commission is
signed by the President, sealed if necessary, and is ready for delivery.40 Venturanza, Villanueva and
Rosquita argue a step further by insisting that their appointments were perfected,41 or became effective,
upon their issuance,43 which they equate to the dates appearing on their respective appointment
papers.44 Since their appointments bear dates prior to the two-month ban, they claim that they are not
midnight appointees.45 Additionally, Tamondong asserts that since his appointment was only a
continuation of his present position, his acceptance and assumption of office also coincided with the date
of his appointment letter.46

The petitioners uniformly assert that the appointee's acts, even if made within the prohibited period, do
not render a "completed" or "perfected". appointment invalid. These subsequent acts are only necessary
to make the appointment effective; and the effectivity of an appointment is not material under the
constitutional provision since these acts are already beyond the President's control.47

Garafil moreover questions the President's power to interpret Section 15, Article VII of the 1987
Constitution. She claims that the President has no power to interpret or clarify the meaning of the
Constitution.48

Second, in making a referral to the Office of the President, the petitioners posit that the CA failed to
discharge its duty to resolve the issues submitted under the Court's referral resolution.49 The petitioners
likewise argue that not all "midnight appointments" are invalid,50 because they must be adjudged on the
basis of the nature, character, and the merits of the appointment. Thus, the petitioners aver that
notwithstanding their coverage under E.O. No. 2, proof that their appointments were made to buy votes,
for partisan reasons, or in bad faith must first be adduced to nullify their appointments.51

Third, E.O. No. 2 violated the petitioners' right to security of tenure.52

THE COMMENT

635
The respondents, represented by the OSG, pray for the dismissal of the petitions.

The respondents dispute the presumption of regularity that the petitioners' appointments enjoy.53 They
claim that Garafil's and Venturanza's appointments, in particular, were irregularly made. Garafil's
(including Villanueva's, Rosquita's, and Tamondong's) appointment and transmittal papers did not pass
through the MRO in accordance with the usual procedures; Venturanza' s papers, while coursed through
the MRO, were released by the OBS only after the appointment ban had set in.54

The respondents further believe that "appointment" under Section 15, Article VII should be construed as
a "process" instead of simply an "act." In imposing a ban on appointments, the Constitution envisions a
complete and effective appointment, which means that the appointee must have accepted the
appointment (by taking the oath) and assumed office before the hap took effect. 55

To the respondents, to construe the word "appointment" in Section 15, Article VII simply as an "act" of
the President would defeat the purpose of the provision because the President can easily circumvent the
prohibition by simply antedating the appointment.56 Since the petitioners took their oath and assumed
office when the constitutional ban on appointment had already set in, they are considered midnight
appointees whose appointments are intrinsically invalid for having been made in violation of the
constitutional prohibition.

Lastly, petitioners cannot claim any violation of their right to due process or to security of tenure simply
because their appointments were invalid.57

ISSUE

The twin issues before us are whether the President has the power to issue E.0. No. 2 that defined the
"midnight appointments" contemplated under Article VII, Section 15 of the 1987 Constitution; and if so,
whether E.O. No. 2's definition of midnight appointment is constitutional. A finding that E.O. No. 2's
definition of midnight appointment is constitutional (thus rendering the petitioners' appointments
invalid) would render any ruling on the petitioners' security of tenure argument completely I unnecessary.
An appointment in violation of the Constitution and/or the law is void and no right to security of tenure
attaches.58

MY CONCURRING AND DISSENTING OPINION

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I vote to partially grant the petitions.

Read together, the petitions ask the Court to grant the following reliefs: first, the declaration of the
unconstitutionality of E.O. No. 2 and the reversal of the assailed CA rulings; second, the declaration of the
validity of their respective appointments and their reinstatement to the positions they held prior to the
issuance of E.O. No. 2; and, third (as prayed for by petitioners Villanueva and Rosquita) if the term of their
appointments had already expired, the grant of back wages with interest.

I vote to only partially grant the petitions as I find that only a part of E.O. No. 2 is unconstitutional, i.e.,
insofar as it unduly expands the scope of midnight appointments under Section 15, Article VII of the 1987
Constitution.

I find the rest of the provisions of E.O. No. 2, particularly, Sections 1 (b) and (c) in relation to Section 2, to
be valid; the presumption of constitutionality remains since the petitioners did not squarely question the
constitutionality of these provisions before the Court. In fact, even if the issue had been raised, none of
the petitioners showed that they have the legal standing to question their validity since the petitioners
are admittedly appoi11tees. of the previous President and not mere appointees of a local chief executive.
The constitutionality of these provisions would have to await its resolution in a proper case.

Despite the partial invalidity of E.O. No. 2, I also find that the petitioners' claims for the validity of their
appointments are unmeritorious, measured under the terms of Section 15, Article VII of the Constitution
and the valid portions of E.O. No. 2. Specifically, while I vote to grant part of the first relief the petitioners
prayed for, I vote to deny their second and third requested reliefs.

A. Preliminary consideration

At the outset, I note that petitioners Villanueva and Rosguita did not appeal the CA' s ruling under Rule 45
of the Rules of Court, but instead filed a petition for certiorari under Rule 65 of these Rules. This
procedural error warrants an outright dismissal of their petition.

For the remedy of certiorari under Rule 65 to lie, an appeal or any plain, speedy, and adequate remedy
should not be available to the aggrieved party. If appeal is available, certiorari will not prosper even if the
cited ground is grave abuse of discretion.59

In the present case, the remedy of appeal by certiorari under Rule 45 of the Rules of Court was clearly

637
available to petitioners Villanueva and Rosquita since the CA decision was a final order that completely
disposed of the proceeding before it.60 The CA, in other words, fully complied with this Court's January
31, 2012 Resolution to "resolve all pending matters and applications, and to decide. the issues as if these
[present] cases have been originally commenced [in the CA]."61

Even if I were to consider the Rosquita/Villanueva petition to be a Rule 45 petition for review on certiorari,
I would still maintain its denial because it was filed out of time. Under Section 2, Rule 45, the aggrieved
party has a period of only fifteen (15) days from notice of the judgment or final order or resolution
appealed from within which to appeal. Based on this rule, their petition should have been filed on October
2, 2013, not on October 7, 2013 or 5 calendars days after the period allowed for appeal.

Notably, not even a hint of explanation accompanied this tardy appeal.62 I am thus forced to conclude
that the petition. was filed under Rule 65 with the intent to make it a substitute for a Rule 45 appeal that
had been lost for lapse of the period to file an appeal. A special civil action for certiorari is a limited form
of review and is a last remedy allowed under strict requirements that Rosquita/Villanueva failed to
observe.63 To reiterate, the Court cannot allow a petition for certiorari to prosper when a party could
appeal the judgment, but instead used a petition for certiorari in lieu of his appeal.64

Moreover, read as a Rule 65 petition, Rosquita's and Villanueva's failure, without any valid explanation,
to file a motion for reconsideration from the CA's ruling warrants the outright dismissal of their petition.
The prior filing of a motion for reconsideration is an indispensable condition before a certiorari petition
can be used.65 This failure is an added lapse that contributes to my resolve to recognize the petition's
deficiencies to the fullest.

Of course, it is within this Court's power to recognize, and the Court has in fact recognized exceptions to
technical and procedural deficiencies based on the discretion given us by the Constitution under our
constitutional rule-making authority.66 Under the proper conditions, the Court should permit the full and
exhaustive ventilation of the parties' arguments and positions despite a petition's technical deficiencies.

This liberal policy, however, is an exception and has its limits. In those rare cases when the Court applied
the exception, there always existed a clear need to prevent the commission of a grave injustice.67 This
critical element unfortunately is not genuinely reflected in Rosquita and Villanueva's respective petitions.

Rosquita and Villanueva must be reminded that the present case is no longer an original suit recognized
under our January 31, 2012 Resolution, but an appeal from the CA' s adverse ruling that was rendered
after the parties were given full opportunity to be heard. Since we are dealing here with an appealed case,
compliance with the required period for appeal is imperative.68 At any rate, even if we brush aside. the
procedural deficiencies, I see no legal and factual basis for its grant, particularly with respect to its pleas

638
to invalidate their removal from office and to restore them to their previous positions. For an orderly
presentation of our reasons, I defer my discussion on this point and first address Garafil' s preliminary
constitutional argument questioning the President's authority to issue E.O. No. 2.

B. The President has the power of

constitutional interpretation

Garafil posits that the President has no power to interpret the Constitution, particularly Section 15, Article
VII of the 1987 Constitution.

I find this position to be legally erroneous.

The Constitution, admittedly, does not contain an express definition of the executive power reposed in
the Chief Executive;69 it merely contains an enumeration of the powers the President can exercise.
Broadly understood,70 however, executive power is the power to enforce and administer the laws of the
land;71 it is the power to carry the laws into practical operation and to enforce their due observance.72

As the country's Chief Executive, the President represents the whole government; he carries the obligation
to ensure the enforcement of all laws by the officials and employees of his department. This
characterization of executive power is plainly evident from the presidential oath of office which states:

I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill my duties as President [or
Vice-President or Acting President] of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God. [In case
of affirmation, last sentence will be omitted.]73

To fulfill the oath to "preserve and defend [the] Constitution, [and] execute its laws," the President, in
particular, and the Executive branch, in general, necessarily must interpret the provisions of the
Constitution or of the particular law they are enforcing.74 This power of legal interpretation uniquely
arises from the legal principle that the grant of executive power to the President is a grant of all powers
necessary for the exercise of the power expressly given.75 The scope of the presidential/executive
interpretative power, however broadly it may be interpreted, has to be read together with the principle
of checks and balances. In other words, the executive's broad interpretative power does not signify that
he possesses unfettered authority to exercise an independent power of legal interpretation. The scope of
the President's power of executive interpretation is at its broadest when exercised clearly within its own
sphere of power and diminishes when it involves the power o f the other branches of the government.76

639
The degrees of presidential legal interpretation thus fluctuates from the very broad to the very narrow.

To place my discussion in proper context and in simpler terms, when the President interprets a
constitutional provision that grants him full discretionary authority to act on a matter, the Court generally
defers to the President's judgment on how the constitutional provision is to be interpreted and applied.77
This is true in ordinary legal situations where a government agency in the executive, tasked to implement
a particular law, is given the first opportunity to interpret and apply it even before a controversy as regards
its implementation reaches the courts.

In fact, the Executive branch is constantly engaged in legal interpretation in performing its multifarious
duties. In instances when the executive interpretation finally reaches the judiciary, the courts may adopt
a deferential attitude towards the construction placed on the statute by the executive officials charged
with its execution. This reality is what we now know as the doctrine of contemporaneous construction.78

In other words, even in the Court's task of constitutional interpretation, it does not simply disregard the
doctrine of contemporaneous construction and the executive power that it supports, since executive
interpretation is a practical and inevitable premise in the execution of laws.79 This recognition is, of
course, constantly subject to the Court's own power of judicial review to ensure that the executive's
interpretation is consistent with the letter and spirit of the law and the Constitution.80

This understanding of the limits of executive interpretation is further qualified in a situation where the
Court has already previously ruled on a particular legal issue affecting the implementation of laws. The
Court's ruling is not only binding on the lower courts under the principle of stare decisis,81 but on the two
co-equal branches of government as well,82 in keeping with the doctrine of separation of powers.83
Judicial review and the interpretation of our laws are powers peculiarly vested by the Constitution in the
courts, which powers, the two other branches must respect.84

Garafil misconstrued these legal parameters as well as the nature of executive interpretation when she
took her positions in the present case. She should have recognized that the President's power of executive
interpretation is even expressly recognized by law. The Administrative Code provides:

Chapter 2 -Ordinance Power

Section 2. Executive Orders. - Acts of the President providing for rules of a general or permanent character
in implementation or execution of constitutional or statutory powers shall be promulgated in executive
orders. (emphasis supplied)

640
As Section 15, Article VII of the Constitution has not been previously interpreted by the Court,85 the
present case affords us the chance to do so under the Court's power and duty of judicial review to
determine the constitutionality of the Executive's interpretation of this provision.86

C. Midnight appointments:

a. The case of Aytona v. Castillo and subsequent cases

Section 15, Article VII of the 1987 Constitution traces its jurisprudential roots from the 1962 case of Aytona
v. Castillo.87 As both parties rely on this case and for its proper understanding in the context of the present
Constitution, a discussion of Aytona is in order.

On December 13, 1961, Congress proclaimed Diosdado Macapagal as the newly elected President of the
Philippines. On December 29, 1961, outgoing President Carlos Garcia appointed Dominador Aytona as ad
interim Governor of the Central Bank. On the same day, Aytona took his oath of office.

On December 30, 1961, President-elect Diosdado Macapagal assumed office. On the following day, he
issued Administrative Order (A.O.) No. 2 cancelling all ad interim appointments made by President Garcia
after December 13, 1961. On January 1, 1962, President Macapagal appointed Andres Castillo as ad
interim Governor of the Central Bank. Castillo assumed and qualified for his post immediately.

Because of A.O. No. 2, Aytona instituted a quo warranto proceeding against Castillo before this Court. He
questioned the validity of the appointments made by outgoing President Garcia and raised the question
of whether A.O. No. 2 was valid.

Even without the equivalent of the present Section 15, Article VII (of the 1987 Constitution) in the then
1935 Constitution, the Court refused to recognize the validity of Aytona's appointment. The Court
regarded the issuance of 350 appointments in one night and the planned induction of almost all of them
a few hours before the inauguration of the new President as an abuse by the outgoing President of his
presidential prerogatives.

The filling of vacancies in important positions, if few, and so spaced to afford some assurance of deliberate
action and careful consideration of the need for the appointment and the appointee's qualifications may
undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of

641
almost all of them a few hours before the inauguration of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive
the new administration of an opportunity to make the corresponding appointments.

xxxx

Of course, the Court is aware of many precedents to the effect that once an appointment has been issued,
it cannot be reconsidered, especially where the appointee has qualified. But none of them refer to mass
ad interim appointments (three-hundred and fifty), issued in the last hours of an outgoing Chief Executive,
in a setting similar to that outlined herein. On the other hand, the authorities admit of exceptional
circumstances justifying revocation and if any circumstances justify revocation, those described herein
should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the
appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might be successfully
set up in the present situation, considering the rush conditional appointments, hurried maneuvers and
other happenings detracting from that degree of good faith, morality and propriety which form the basic
foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly
cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity
and efficiency of the public service. Needless to say, there are instances wherein not only strict legality,
but also fairness, justice and righteousness should be taken into account.

In effect, the Court upheld the incoming President's order revoking the en masse appointments made by
the outgoing President. The Court accomplished this, not on the basis of any express constitutional or
statutory prohibition against those appointments, but because the outgoing President "abused" the
presidential power of appointment. The presence of "abuse" was found based on the circumstances
attendant to Aytona's appointment.

After the Aytona ruling, cases on "midnight" or "last minute" appointments were ruled to be valid or
invalid depending on the attendant circumstances.

In Rodriguez, Jr. v. Quirino,88 the Court nullified the appointment made after considering the following
circumstances: the appointee was · notified of his appointment only on December 30, 1961 (after the new
President had assumed office) even though the appointment was made six months earlier; he took his
oath of office days after the new President had recalled the "midnight" appointments issued by his
predecessor; there was no urgency that justified the issuance of an ad interim appointment; and the oath
of office that the appointee took was considered void. In contrast, the Court upheld the appointments

642
made in Merrera v. Hon. Liwag89 and Morales, Jr. v. Patriarca.90

Gilera v. Fernandez91 and Quimsing v. Tajanglangit92 gave the Court the opportunity to clarify that the
Aytona ruling and the subsequent cases "did not categorically declare [the revocation of the 'midnight
appointments' as] valid" and that all appointments made by the outgoing President were ineffective. The
Court stressed that its action, either upholding or nullifying the appointments made, was "more
influenced by the doubtful character of the appointments themselves and not by the contention that the
President had validly recalled them."93

The appointments in Merrera, Morales and Tajanglangit94 were not considered "midnight" appointments
although the appointees took their oath or assumed office near the end of the outgoing President's term
(or within the period covered by the presidential issuance). In these cases, the Court considered several
factors - the need to fill the vacancies, the qualifications of the appointees, and the date of the
appointments - in determining whether the appointment was an abuse of the appointing power of the
outgoing President and must thus be struck down in deference to the newly elected President.

In sum, before the 1987 Constitution when no express legal prohibition existed against appointments
made by an outgoing President and out of respect for the separation of powers principle, the Court
considered the validity of alleged "midnight" appointments on a case-to-case basis.

b. The 1987 Constitution and the earlier laws on appointment ban after Aytona

While the midnight appointments contemplated in Aytona were, by nature, strictly last-minute
appointments, or were made after an outgoing President had lost his bid for reelection, statutory law
after Aytona expanded · the concept of a midnight appointment by extending the period when
appointments could not be made within the period prior to the elections.

Republic Act (RA) No. 6388,95 as a rule, prohibited national and local appointing authorities "from
appointing or hiring new employees" "during the period of forty-five days before a regular election and
thirty days before a special election."96 The statutory prohibition was reproduced in Section 178 (f) and
(g) of Presidential Decree (PD) No. 1296.97 Eventually, these prohibitions were substantially carried over
into Batas Pambansa Big. 881.98 Thus, even prior to the 1987 Constitution, statutory law had already
generally prohibited the appointment or hiring of a new employee within specific time frames broader
than the midnight appointment period understood in Aytona.

This broader statutory law concept of midnight appointments was carried over into the 1987 Constitution
where the ban was a special one specifically directed only against the outgoing President. The prohibition

643
covers appointments without any distinction on whether the appointee is a new hire or not, or whether
the appointment would involve a transfer, a detail or other kinds of personnel movement.99

Section 15, Article VII of the Constitution also provides its own period of effectivity of two months prior
to the coming Presidential elections all the way to the end of the outgoing President's term. While the
prohibition contains an exception that is left for the outgoing President's determination, his power of
appointment under the exception is very much curtailed; the permitted appointment is limited only to
temporary appointments in the executive branch. Thus, as worded, Section 15, Article VII (both its rule
and exception) is a clear limitation on the appointing power of the outgoing President.100

c. The status of Presidential midnight appointments under the 1987 Constitution and the CA 's defective
treatment of midnight appointments

By providing for a specific provision especially applicable only to the outgoing President (a provision
entirely absent in the 1935 Constitution when the Aytona ruling took place and in the 1973 Constitution)
under terms uniquely directed at his office, the Constitution apparently sought to limit any judicial fact-
finding determination of the validity of the appointment in the manner done in Aytona. Had the intent
been otherwise, there would have been no need to provide for a specific period for the operation of the
ban; the framers of the Constitution would have left things as they had been.

In other words, by the express terms of Section 15, Article VII, the Constitution fixed the period covered
by the appointment ban precisely to avoid the necessity of making further inquiries on whether the
appointments were made with "undue haste, hurried maneuvers, [or] for partisan reasons, [or otherwise]
not in accordance with good faith" - issues that are largely factual in nature.

The fixed period too inevitably established the presumption that "appointments" made outside this two-
month period have been made in

the regular discharge of duties and hence should enjoy the presumption of regularity or validity.101 In
this sense, the issue of –

Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith,

in our January 31, 2012 Resolution largely becomes a non-issue. The CA's failure to resolve these matters

644
is consequently not fatal.102

Thus, based on these considerations of presidential power and its limits, I find it completely unnecessary
for the CA .to qualify its ruling upholding E.O. No. 2 by stating that "not all midnight appointments are
invalid." If appointments were indeed made within the prohibited period, then they suffer from an
irremediable infirmity. On the other hand, if they were issued outside the prohibited period, then they
fall outside the ambit of Section 15, Article VII.

Notably, the CA used wrong considerations and cited inapplicable cases that led it to erroneously qualify
its ruling. The CA cited cases involving appointments made after the elections by an outgoing local chief
executive, not by the President.

In particular, in the CA's cited Nazareno v. City of Dumaguete,103 the Court upheld the Civil Service
Commission's (CSC's) issuance that. generally prohibited outgoing local chief executives from exercising
their appointing power unless certain requirements, evidencing regularity of the appointment, are
observed.104 In Sales v. Carreon,105 the Court supported t he CSC's nullification of the appointments
made by the outgoing local chief executive because it was made in disregard of civil service laws and rules,
not because of an express prohibition against appointment per se.

In reading these cited cases, it should be noted that their reference to the prohibition under Section 15,
Article VII was tangential and pertained merely to the provision's underlying rationale. Thus, while noting
that this provision applies only to presidential appointments,106 the Court nevertheless cited the
prohibition because of the rationale behind it, i.e., to discourage losing candidates from issuing
appointments merely for partisan purposes, as these losers thereby deprive the incoming administration
of the opportunity to make their own appointments.107

The CSC-issued prohibition applicable to local chief executives is jurisprudentially significant since the
Constitution does not expressly prohibit an outgoing local chief executive from exercising its power to
appoint or hire new employees after the elections (in the manner that an outgoing President is prohibited
under Section 15, Article VII). Thus, the validity of an appointment by a local chief executive in the cited
cases was, in effect, determined by applying the CSC's regulations to the facts surrounding each contested
appointment. This is the import of Sales and Nazareno. These cases, of course, are obviously inapplicable
to the present case, given the existence of a clear constitutional prohibition applicable to an outgoing
President.

In this light, I also do not see any need to refer anything to the Office of the President with respect to the
nature, character, and merits of the petitioners' appointment. As previously stated, if an "appointment"
is made within the prohibited period, it is illegal (as the CA itself found, although for the wrong reason as

645
will be discussed later) for being contrary to the fundamental law. No amount of evaluation by the
President can validate this kind of appointment.

D. The meaning of appointment

under Section 15, Article VII

a. Considerations under Section 15, Article VII

i. The Dichotomy of an Appointment - it is both an executive act and a process

Appointments by the President may be construed both in its broad and narrow senses. In its broad sense,
an appointment is a process that must comply with the requirements set by law and by jurisprudence in
order to be complete. Narrowly speaking, an appointment is an executive act that the President
unequivocally exercises pursuant to his discretion.

This dichotomy arises because of the two participants in the appointing process - the appointing power
(which, in this case, is the President), and the appointee. While the concurrence of the actions of these
two participants is necessary in order for an appointment to be fully effective, it is also important to note
that the appointing power and the appointee act independently of each other. An examination and
understanding of this relationship is the key to the proper appreciation and interpretation of the
"appointment" that Section 15, Article VII of the Constitution speaks of.

i. a. Appointment in its broad sense - as a process

As a process, appointments made by the President108 undergo three stages: first, the making of the
commission,109 which includes the signing of the appointment papers by the President and its sealing if
necessary; second, the issuance of the commission and the release of the transmittal letter, if any; arid
third, the appointee's receipt and acceptance of the appointment, which could either be express or
implied.

In this broad sense, an appointment is a process that is initiated by the acts of the President and
culminates with the positive acts of the appointee.110

This broad interpretation of an appointment is necessary and appropriate in cases where there is no issue

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as to the validity of the first two stages of appointment, i.e., the signing of the appointment papers, and
the issuance of the commission. The main question to be resolved in considering an appointment as a
process, is whether or not there was a valid assumption of public office, based on the appointee's valid
acceptance of the appointment through an oath or any positive act.

In Javier v. Reyes,111 the Court upheld the appointment of petitioner Isidro Javier as Chief of Police of
Malolos on the finding that no question existed on the regularity of his appointment by the then mayor
of Malolos. Compared to his fellow claimant over the position, he was the one who accepted the
appointment by taking an oath and subsequently discharging the functions of his office. Although this
case does not concern a Presidential appointment, it shows that in cases where there was already a valid
act of appointment, the only remaining act to be done is for the appointee to exercise his part in the
process so that the appointment will be effective. Consequently, an acceptance merely results from the
valid exercise of the appointing authority of his power to appoint. It is an act of the appointee that lies
outside the control of the appointing authority and totally depends on the appointee's discretion.

i. b. Appointment in its narrow sense - as an executive act

Appointment, as an executive act, is an exercise of power or authority. It is the unequivocal act of

designating or selecting an individual to discharge and perform the duties and functions of an office or
trust.112 The appointment is deemed complete once the last act required of the appointing authority has
been complied with and acceptance is thereafter made by the appointee in order to render it fully
effective.113

In this narrow sense, appointment is simply an executive act; that the full effectiveness of an appointment
requires a positive act from the appointee is not a denial of the existence of the power and the full exercise
of the act by the executive himself.

Appointment as an executive act, as opposed to a process, is well-established under our laws and
jurisprudence. This is referred to as the President's appointing power. Specifically, this executive power is
embodied in the Constitution under Article VII, Sections 14, 15, and 16 and is vested on the President as
provided under Section 1, Article VII.

A plain reading of the Constitution alone shows that the term "appointment" may pertain to the
President's act of appointment as the President, on his own., has the power to appoint officials as
authorized under the Constitution and 'the pertinent laws. This presidential appointment power should
be distinguished from the appointment process that requires the act of the appointee for its efficacy. If
these two concepts would be confused with one another, the result could be havoc and absurdities in our
jurisprudence every time we resolve a case before us.

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The President's power of appointment is sui generis. It is intrinsically an executive act because the filling
of an office created by law is an implementation of that law.114 The power to appoint is the exclusive
prerogative of the President involving the exercise of his discretion;115 the wide latitude given to. the
President to appoint is further demonstrated by the constitutional recognition that the President is
granted the power to appoint even those officials whose appointments are not provided for by law.116

In other words, where there are offices that have to be filled, but the law does not provide the process
for filling them, the Constitution recognizes the power of the President to fill the office by appointment.
Any limitation on or qualification to the exercise of the President's appointment power should be strictly
construed and must be clearly stated in order to be recognized.

In Osea v. Malaya117 and in other several cases,118 the Court held that an appointment may be defined
as the selection, by the authority vested with the power, of an individual who is to exercise the functions
of a given office. The constitutionally mandated power of the President's appointing power was statutorily
recognized under Section 16, Chapter V, Book III, Title I of the Administrative Code. Book III of the Code
pertains to the Office of the President, and Title I relates to the "Powers of the President." Chapter V, on
the other hand, focuses on the President's "Power of Appointment" and its Section 16 provides:

Section 16. Power of Appointment. -The President shall exercise the power to appoint such officials as
provided for in the Constitution and laws.

Under these terms and structure, the term "appointment" apparently does not automatically equate to a
process and pertain to the President's act or exercise of his power of appointment. Thus, when
interpreting the word "appointment" in cases before the Court, we must consider which of the two should
be applied considering the factual and legal settings of each case.

In the present case, I submit that what is applicable is not the concept of "appointment as a process" but
the executive act or the President's power of appointment. The interpretation of "appointment" in Section
15, Article VII as an executive act rather than as a process finds support in the language of the provision
itself. Section 15, Article VII reads:

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

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This express wording leads us away from an interpretation of the provision as a process that would involve
the appointee and his or her acts within the scope of the appointment ban. For one, Section 15, Article
VII of the 1987 Constitution is directed only against an outgoing President and against no other. By
providing that the President shall not make appointments within the specified period, the Constitution
could not have barred the President from doing things that are not within his power to accomplish as
appointing authority, such as the acts required or expected of the appointee.

Note that the appointee who is at the receiving end of the appointment - if indeed the term
"appointment" is meant as a process -is not even-mentioned or even alluded to in Section 15, Article VII.
Had the original intent of the framers been to include him, they would have simply "prohibited an
appointee from accepting a Presidential appointment commencing two months before the next
Presidential Election," which already presupposes a previous valid appointment by the President.

From this perspective, the objective of the provision is to limit the President's appointing power alone, by
prohibiting him from making appointments within a certain period; the intent is not to curtail the entire
appointment process. As a limitation solely applicable to the President's power of appointment,
appointment under this provision largely assumes the character of an executive act that does not concern
the appointee at all.119

In their interpretation, the respondents insist that the acceptance and assumption of office by the
appointee must also be accomplished before the ban sets in. They reason out that these acts are necessary
for the completion and effectivity of an appointment; otherwise, "it would be useless to prohibit an
incomplete and ineffective appointment."120 Notably, the ponencia supports this interpretation.

With due respect, I believe that the ponencia's and the respondents' interpretation merely highlights the
word "appointment" in Section 15 but ignores the totality of the provision and the language it is couched
in. There is simply nothing in the language of Section 15, Article VII that supports the respondents' plea
for the Court to view "appointment" as a process. As will be discussed in detail below, even the supposed
"uselessness" of prohibiting an "ineffective appointment" has no legal basis.

l especially note in examining and construing Section 15, Article VII that what the petitioners in the present
case challenge is the very authority of an outgoing President to exercise his appointing power based on a
specific constitutional provision that makes the date of the making of appointment the focal point of the
prohibition. These unique factual and legal aspects of the case suffice to reject the respondents' reliance
on cases whose factual and legal settings are completely at odds with the present case.121

For the same reason, the petitioners, too, cannot simply rely on In Re: Seniority Among the Four (4) Most
Recent Appointments to the Position of Associate Justices of the Court of Appeals,122 in interpreting

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Section 15, Article VII of the 1987 Constitution.

In that cited case, the Court was tasked to resolve the correct basis in determining the seniority in the
Court of Appeals of the newly appointed justices: whether it should be based on (i) the date the
commission was signed by the President, i.e., the date appearing on the face of the document or (ii) the
order of appointments as contained in the transmittal letter to the Court.123 In applying the first option,
the Court simply applied the clear letter of the law124 that seniority should be based on "the dates of
their respective appointments."125 In closing, the Court said:

For purposes of completion of the appointment process, the appointment is complete when the
commission is signed by the executive, and sealed if necessary, and is ready to be delivered or transmitted
to the appointee. Thus, transmittal of the commission is an act which is done after the appointment has
already been completed. It is not required to complete the appointment but only to facilitate the
effectivity of the appointment by the appointee's receipt and acceptance thereof.

For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the
President (which is the date appearing on the face of such document) is the date of the appointment.
Such date will determine the seniority of the members of the Court of Appeals in connection with Section
3, Chapter I of BP 129, as amended by RA 8246. [Italics and emphasis supplied.]

The issue before us, however, is not as simple as the issue of seniority of the justices of the CA - a matter
that is largely internal to its members. Far more important than this, the issue before us directly relates
to the constitutional limitation on the President's exercise of his appointing power. The applicable law in
In Re: Seniority is clearly worded on the proper basis of seniority in the CA, i.e., the date of
appointment.126 This is significantly very much unlike the Constitution's language that commands the
President not to "make appointments."

Thus, the question should be: when do we consider the President to have already made an appointment
or exercised his appointing power under Section 15, Article VII of the 1987 Constitution. Otherwise
phrased, we ask: what stage in the appointment process must have been completed before the ban takes
effect in order that an appointment may not be considered under the broad category of "midnight
appointment" under Section 15, Article VII.

ii. Purpose of Section 15, Article VII; in relation with Section 4, Article VII

A factor I cannot disregard in our interpretative exercise is the presence of pragmatic considerations127
underlying Section 15, Article VII of the 1987 Constitution that uniquely warrant a deeper and more critical

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understanding of the whole provision - instead of only a word therein - and of the purpose behind it.

These considerations militate not only against a literal interpretation of the phrase "shall not make
appointments," as the CA appear to have shortsightedly ruled, but also against an unduly expansive
interpretation of the .word "appointments" based on jurisprudential definitions that were decided under
completely different sets of facts and law.

Again, this latter broad-sense definition of appointment - in its largely administrative law concept - cannot
be controlling in our interpretation of Section 15, Article VII For emphasis, Section 15, Article VII is unique
in the factual situation it contemplates and in restricting the President's otherwise broad appointing
power.

Under E.O. No. 2, any of the following is considered a "midnight appointment" even if the date of
appointment is prior to the effectivity of the constitutional ban (March 11, 2010), where:

1. the appointee accepted, or took his oath, or assumed office at the time when the constitutional ban is
already in effect;

2. the appointment will take effect or where the office involved will be vacant during the effectivity of the
constitutional ban;

3. the appointment or promotion was made in violation of Section 261 of the Omnibus Election Code.

In In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as
Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively
(In re Valenzuela),128 we ruled that Section 15, Article VII is directed against two types of appointments,
viz.: (i) those made for buying votes and (ii) those made for partisan considerations.129

The first type obviously applies only before the elections; while the second type may apply whether the
appointment was made before or after elections.130 This observation is critical since under Section 4,
Article VII of the 1987 Constitution,131 the President is ineligible for any reelection.

Notably in Aytona, the Court cautioned the outgoing President not to exercise his prerogatives in a
manner that would tie the hands of the incoming President through the appointment of individuals to key

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positions in the government. This pronouncement should not be lost to us in the present case because an
outgoing President is ineligible for reelection under the 1987 Constitution. Under this situation, the
objective of any prohibition against appointment, as in Aytona, is aimed at preventing the incumbent from
adversely affecting his successor through partisan action. During an incumbent' s last days in office, his
sole mandate should be to ensure the orderly transfer of government administration to the next
President.

Thus, aside from the limitations on the president's appointing power under Section 15,132 we need to
add the constitutional disfavor that appointments made by the outgoing President carry when the
elections are drawing near (and more so after the electorate has spoken), as this can be presumed to be
for partisan considerations, or in furtherance or maintenance of political interest or influence, or as
reward for partisan loyalties, or even for the purpose of shackling the hands of the new administration.

In elevating the Aytona ruling and its resulting prohibition against midnight appointments to the level of
a constitutional provision, the thrust of Section 15, Article VII must be the broadening of the general rule
against the exercise of the midnight appointing power and the narrowing of the exception in its favor.133
A constitutional provision specifically directed only against an outgoing President's exercise of his
appointing power is also an express recognition of the unique and vast powers and responsibilities
inherent in the Office of the President134 that an outgoing President should most judiciously consider.
Again, I quote Aytona:

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December
30, 1961. But it is common sense to believe that after the proclamation of the election of President
Macapagal, his was no more than a. "caretaker" administration. He was duty bound to prepare for the
orderly transfer of authority the incoming President, and he should not do acts which he ought to know,
would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate
had spoken. It was not for him to use powers as incumbent President to continue the political warfare
that had ended or to avail himself of presidential prerogatives to serve partisan purposes.

To be sure, the broad discretion given the appointing power may be limited by the Constitution135 and
by law.136 Nonetheless, any limitation of the exercise of this broad power is generally' strictly construed.
Correspondingly, any undue expansion of a textually evident limitation under Section 15, Article VI,
would137 amount to judicial legislation.

iii. Nature of the power of appointment

Appointment is intrinsically an executive act; it is a discretionary power that must be exercised by the
Chief Executive according to his best lights.138 It involves a question of policy that only the appointing

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authority can decide. At the presidential level, his or her choice of an appointee involves a very highly
political and administrative act of decision making that calls for considerations of wisdom, convenience,
utility, and national interests; it is a power that the Constitution or the law has vested in him in his various
roles.139

From the prism of Section 15, Article VII of the 1987 Constitution, I find it clear that the framers of the
Constitution presumed the appointments made before the fixed two-month period preceding the
elections to be generally characterized by good faith on the President's part. The good faith (or lack of it)
of the President and his appointee, are matters that do not fall under .the specific concern of Section 15,
Article VII.

b. Combined reading of these considerations

In sum, I find the following basic considerations to be relevant in the resolution of the issues before us:
first, the definition of appointment in jurisprudence as an executive act (characterizing it as an
"unequivocal act" of the appointing power and considering it "complete xxx once the last act required of
the appointing authority has been complied with"), as opposed to the broad view of the term as a process
that involves acts of the appointee; second, the purpose of Sedion 15, in relation to Section 4 of Article
VII of the Constitution, in the light of the Aytona ruling and; third, the nature of the power of appointment
and the considerations that underlie it.

Based on these considerations, I conclude that for an appointment to be valid under Section 15, Article
VII, the appointment papers must have already been signed, issued or released prior to the constitutional
ban, addressed to the head of the office concerned or the appointee himself. The appointee's acceptance
through an oath, assumption of office or any positive act does not find any reference in Section 15, Article
VII as this part of the appointment process is already outside the President's power of control and is wholly
within the appointee's discretion. The Constitution could not have envisioned a prohibition on the
President that is already beyond the sphere of his executive powers.

The ponencia disagrees with this view and asserts that an appointment will only be valid if all the elements
for the completion of its total process are present.140 It further avers that my argument (that acceptance
even after the ban will not affect the appointment's validity as long as the designation and transmittal of
the appointment papers were made before the ban sets in), will lead to glaring absurdities, i.e., that in
case of the appointee's non-acceptance, the position will be considered occupied and nobody else may
be appointed to it; that an incumbent public official, appointed to another public office by the President,
will automatically be deemed to occupy the new public office and to have resigned from his first office;
and that, if the President is unhappy with an incumbent public official, the President can simply appoint
him to another public office, thus remove him from his current post without due process.

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I disagree with these contentions.

The act of issuing or releasing the appointment paper (together with the transmittal letter, if any) is the
only reliable141 and unequivocal142 act that must be completed to show the intent of the appointing
power to select the appointee. In other words, the President cannot be considered to have performed the
"last act" required of him to complete the exercise of his power of appointment if the signing of the
appointment is not coupled with its issuance.

Along the same line of thought, because the appointing authority considers both the formal and informal
qualifications of the prospective appointee143 in exercising the power of appointment, the issuance of
the appointment is the act that signifies the certainty of his choice. Prior to the issuance of an
appointment, the President can choose to issue an appointment to another, or decide not to issue any
appointment at all.

After the issuance and before the appointment is accepted by the appointee, the appointment process
still lies within the President's control although the appointment can already be accepted by the
appointee. The President finally loses control over the appointment process when the appointee accepts
it. Prior to its acceptance, the President can still recall the appointment he issued and exercise his
appointing power anew or completely desist from exercising it.

The appointment ban, however, limits the President's control over the appointment process. When the
appointment ban sets .in, the President can no longer exercise his appointment power, although the
President may recall a previously unaccepted appointment, or revoke an unaccepted one. The President
may likewise exercise his appointing power under the exception in Section 15, Article VII of the 1987
Constitution.

These conclusions draw strength from the reality that these acts are the only options that are left to the
sole President's discretion and full control, and that are inherent and consistent with the President's
prerogative as the appointing power.

The full extent of the presidential control over the appointment prior to its acceptance, however, does
not and should not materially alter the fact of the issuance as the reckoning point under Section 15, Article
VII. Any period prior to the appointee's acceptance is simply a period when the act of appointment,
including its issuance, can be said to be complete although the appointment is not yet effective.

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These conclusions are consistent with both the tenor and nature of Section 15, Article VII as a limitation
against the President's exercise of his power to appoint. Since she acts pertaining to the appointee himself
are beyond the President's control, these same acts should not be covered by a provision that only
essentially limits the executive power of appointment. This too, is consistent, with the constitutional
objective of preventing the outgoing president from tying the hands of the incoming president through a
belated exercise of the appointing power.

Moreover, these conclusions will not lead to the glaring absurdities that the ponencia illustrates. Contrary
to the ponencia 's arguments, we do not totally do away with or disregard the fact that an appointment
is also a process. The Court should only make a clear and careful delineation that, for purposes of the
prohibition against the President's midnight appointments under Section 15, Article VII, the interpretation
should be limited to the notion of an appointment as an executive act or the President's exercise of his
appointing power. The prohibition could not have included acts (such as the appointee's acceptance) that
are outside the President's scope of executive powers.

In other words, what is applicable in the present case is the term "appointment" in the context of the
President's appointing power, a concept which, as discussed above, is constitutionally, statutorily, and
jurisprudentially acknowledged in our jurisdiction vis-a-vis appointment as a process. The focus in the:
present case is the limitation. on the President's appointing power, an executive act, where the acts of
third persons, such as the appointee, is not material in the resolution of the case.

Thus, an acceptance is still necessary in order for the appointee to validly assume his post and discharge
the functions of his new office, and thus make the appointment effective. There can never be -an instance
where the appointment of an incumbent will automatically result in his resignation from his present post
and his subsequent assumption of his new position; or where the President can simply remove an
incumbent from his current office by appointing him to another one. I stress that acceptance through oath
or any positive act is still indispensable before any assumption of office may occur.

Moreover, contrary to the ponencia's assertion, the appointee's non-acceptance cannot in any way
translate to a situation where the position will be considered occupied and nobody else may be appointed
to it. As already discussed, before the appointee's acceptance of his appointment, the power of
appointment still subsists and is within the President's control. Hence, the appointee's non-acceptance
cannot hold the President hostage and prevent him from exercising his power to appoint someone else
who is also eligible and qualified for the position.

In addition, such cumbersome interpretation would undermine the broad appointing power of the
President and place it at the mercy of bureaucratic processes. It would practically reduce the President
and the OES to a virtual housekeeper several months before the appointment ban, to

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monitor the acceptance of appointments and prevent any prejudice to public service.

1. Section 15 cannot be limited to the mechanical act of "making" the appointment

We cannot also distinguish, as the petitioners did,144 between the mechanical acts of making an
appointment paper, on one hand, and its issuance or release, on the other hand, without ignoring the
basic principle of a single Executive. The issuance of an appointment paper and the release of the
transmittal letter, if any, necessarily form part of the exercise of the appointing power. Without the
issuance that subsequently follows the signing of the appointment papers, it cannot seriously be asserted
that the President had indeed completely exercised his appointing authority. This conclusion remains valid
even if the act of issuance is not personally accomplished by the President since the President, by
necessity, must act through agents and cannot likewise be allowed to circumvent the prohibition against
him by allowing officials under his control to do what he himself cannot do directly.145

Even Rule IV of the 1998 Revised Omnibus Rules on Appointment and Other Personnel Actions, which
petitioners Venturanza, Villanueva and Rosquita ironically cited, provides that "an appointment issued in
accordance with pertinent laws and rules shall take effect immediately, upon its issuance by the
appointing authority." The term "laws" mentioned in the Rule necessarily includes the Constitution as the
fundamental law. Thus, immediately after issuance, the appointee can already manifest his acceptance
by qualifying for the position and assuming office; before them, it is the President who has the full and
complete control, and loses this control only upon the appointee's acceptance.

i. a. The role of the MRO

In accomplishing this second stage of the appointment process, the appointment paper and transmittal
letter, if any, may be coursed through the MRO. Prudence suggests this course of action not only for the
appointee's convenience but for record-keeping purposes. The undisputed testimony of Director
Dimaandal of the MRO on this score is as follows:

Q: What is the effect if a document is released by an office or department within Malacañan without going
through the MRO?

A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot
issue a certified true copy of the same because as far as the MRO is concerned, it does not exist in our
official records, hence, not an official document from the Malacañan. There is no way of verifying the

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document's existence and authenticity unless the document is on file with the MRO even if the person
who claims to have in his possession a genuine document furnished to him personally by the President.
As a matter of fact, it is only the MRO which is authorized to issue certified true copies of documents
emanating from Malacañan being the official custodian and central repository of said documents. Not
even the OES can issue a certified true copy of documents prepared by them (boldfacing supplied).

Q: Why do you say that?

A: Because the MRO is the so-called "gate-keeper" of the Malacañan Palace. All incoming and outgoing
documents and correspondence must pass through the MRO. As the official custodian, the MRO is in
charge of the official release of documents.

xxxx

Q: Assuming the MRO has already received the original appointment paper signed by the President
together with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit
these documents immediately, that is, on the same day?

A: Yes.

However, contrary to the respondents' claim,146 failure to course an appointment through the MRO for
official release is not fatal. Otherwise, an office147 in the Executive department particularly within the
Office of the President can make or break an appointment by its own inaction or even contrary to the
instruction of the Chief Executive,148 thereby emasculating the President's power of control and negating
his power of appointment.

The president's power of control "of all the executive departments, bureaus, and offices" gives him the
authority to assume directly the functions of the executive department, bureau and office, or interfere
with the discretion of its officials and employees149 from the Cabinet Secretary down to the lowliest
clerk150 or altogether ignore their recommendations.151 Thus, the President himself or his Executive
Secretary may cause the issuance of the appointment paper and transmittal letter, if any, without need
of forwarding it to the MRO so long as the date of actual issuance or release of the appointment paper
(and transmittal letter, if any) can otherwise be established by other means and be proven with
reasonable certainty in obeisance to the constitutional prohibition. Since this constitutional limitation on
the President's appointing power is triggered only every six years, compliance with this evidentiary
requirement to establish with reasonable certainty the timeliness of the issuance of appointment paper
should not be difficult to comply with.

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Under this situation, I agree with the ponencia that the President must not only sign the appointment
paper but also intend that the appointment paper be issued.152

I disagree, however, with the ponencia' s position that "the release of the appointment paper through the
MRO is an unequivocal act that signifies the President's intent of its release."153 The release of the
appointment paper through the MRO is not the only act that can signify the President's intent. The
President may also cause the issuance of the appointment paper and transmittal letter, if any, without
the need of forwarding it to the MRO so long as the date of actual issuance or release of the appointment
paper (and transmittal letter, if any) can otherwise be established by other means and be proven with
reasonable certainty.

I also agree with the ponencia that the possession of the original appointment paper is not indispensable
to authorize an appointee to assume office.1âwphi1 ·I, however, disagree with its view that "in case of
loss of the original appointment paper, the appointment must be evidenced by a certified true copy by
the proper office, in this case the MRO."154 In case of loss of the original appointment paper, the
certification may not only be evidenced by a certified true copy from the MRO but can also be established
by other means and be proven with reasonable certainty.

c. The extension of Section 15, Article VII to the acts of the appointee is completely unwarranted by the
text and intent of the Constitution

In upholding E.O. No. 2 that the acts required of the appointee must also be accomplished before the ban,
the CA opined that –

this mandated period banned by the Constitution, no less, should enjoin not only the act of the President
in making appointments, but all other acts that would give effect or allow the furtherance of the
President's prohibited act of making appointment within the same prohibited period, if only to breathe
life and give full effect to the spirit behind the Constitutional provision limiting the power of the President.
This deduction proceeds from the settled rule that an appointment, in order to be effective, requires the
acceptance of the appointee.

xxxx

In requiring that the acceptance of the appointment, i.e., the taking of an oath and the assumption of
office, be also done prior to the ban, E.O. No. 2 merely implements in full force the Constitutional

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considerations of practicality and logic enshrined in the provision on midnight appointments. Since . the
appointment of the President only becomes effective upon the appointee's acceptance, it stands to
reason that the entire process completing an appointment must be done prior to the Constitutionally set
period.155

What worth is it to prohibit the President from making an appointment that is not effective anyway? It
would be useless to prohibit an incomplete and ineffective appointment. To rule otherwise is to make the
intent of the Constitutional provision not only purely illusory, but would also open the floodgates to
possible abuse. The outgoing President may x x x [simply] antedate [the] appointment papers to make it
appear that they were legally signed prior to the ban[.]

The CA's reasoning, unfortunately, does not validate its conclusion. The CA upheld the extension of the
scope of the prohibition to the acts of the appointee on the reasoning that these acts "give effect or allow
the furtherance of the President's prohibited act of making appointments within the same prohibited
period." The CA ruling obviously failed to consider the situation where the making and issuance of the
appointments were made outside of the prohibited period. To be sure, limiting the term "appointment"
to the mechanical act of making the appointment, i.e., the date appearing on the appointment paper, will
severely encroach on the constitutional prerogatives of the incoming president. An appointment whose
validity stands solely on the date appearing on the appointment paper will practically leave the operation
of the appointment ban at the sole determination of the outgoing President since he can simply antedate
the appointment to avoid the prohibition. This situation would bring us back to the days of Aytona when
the validity of the appointment would have no reference to specific time frames but would be resolved
on a case-to-case basis, rendering practically useless the elevation and modification of the Aytona ruling
into a constitutional provision.

With the date of actual issuance or release as the reckoning point under the Constitution, however, the
feared "encroachment" on the prerogative of the incoming President loses ground: if the appointee
rejects the appointment at a time when the ban has already set in, then the President's exercise of his
appointing power simply failed to produce the desired outcome. If the appointee accepts the appointment
(which was actually issued before the ban) during the ban, then the acceptance simply renders the timely
exercise of the power of appointment efficacious. The fact remains that before or after the ban sets in,
the President remains to be the Chief Executive until his successor legally assumes the Presidency; and
before the ban sets in, the Constitution allows him to exercise his power of appointment, subject only to
constitutional limitations. Regardless of the appointee's action, the prohibition is maintained since the
third stage in the appointment process is no longer within the outgoing President's control. The evils
sought to be addressed by Section 15 is kept intact by a constitutionally timely exercise of the appointing
power.156

The conclusion I reach is but in keeping with the common observation that presidential appointees do not
necessarily accept their appointments right away since most (if not all) of these appointees have current

659
professional affiliations or undertakings elsewhere, be it in the government or in the private sector, which
they need to wind up before assuming their new positions. This is an obvious fact that the framers of the
Constitution could not have ignored in crafting Section 15, Article VII.

Consequently, assumption of office or taking of oath of office may I take some time after their -
appointment papers have been issued. Including these acts within the phrase "make appointments" is a
completely unwarranted expansion of the text and a clear departure from the intent of the Constitution.
In this light, E.O. No. 2 is unconstitutional to the extent that it unduly expanded the scope of prohibition
in Section 15, Article VII.157

While I maintain my view that subsequent acts of .the appointee need not be made before the ban, none
of the petitioners however have shown that their appointment papers (and transmittal letter) have been
issued (and released) before the ban. The presumption of regularity of official acts cannot alter the fact
that the dates appearing on the petitioners' appointment papers (March 5, 2010; February 23, 2010;
March 3, 2010; March 5, 2010; and March 1, 2010) and transmittal letters (March 8, 2010 and March 9,
2010) only establish that the documents were made or signed on the date indicated, that is, before the
ban. It does not establish the fact that it was issued and released on the date indicated.158 While. it would
have been normal to indicate the date of issuance of appointment, had the appointments been coursed
through the MRO, the absence of that date is something that cannot be the subject of this Court's
speculations.159 In the case of Garafil, the MRO received her appointment and transmittal papers only
on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped "released"
by the OES without showing when the OES actually issued and released the same. In the case of
Venturanza, while his appointment papers were sent to the MRO, the MRO released the same only on
March 12, 2013 which is the same date the OES forwarded it to the MRO.160 In short, when his
appointment papers were officially issued the appointment ban was already in effect.

In the case of Villanueva and Rosquita, nothing supports their claim that their appointment papers were
actually issued on the date appearing on their respective appointment papers. Lastly, in the case of
Tamondong, his appointment was not coursed through the MRO. His letter of appointment was only
released to him on March 25, 2010, already 14 days beyond the March 11, 2010 reckoning period. Also,
it was only on May 6, 2010 that the MRO actually received his appointment papers.

I am not unaware that the interpretation above of Section 15, Article VII does not totally foreclose any
circumvention of the prohibition against midnight appointment since the President can still "fix" the date
of the issuance of the appointment paper. That may be a possibility - a possibility with legal repercussions
that the Court is wholly unprepared to indulge in for the moment, for it involves a presumption on factual
issues that were never raised nor are even evident in the circumstances of the present case. Nonetheless,
the possibility of abuse of power does not argue against its existence nor destroy, diminish, or remove
the power; much less does this authorize the Court to depart from its constitutional role of interpreting a
textually evident Constitutional provision according to its letter and the spirit that animates it.

660
In view of the foregoing, I vote that the Court RESOLVES to:

1. DISMISS the petition for certiorari in G.R. No. 209138 for technical deficiencies;

2. PARTIALLY GRANT the petition for review on certiorari by declaring the phrase "including all
appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath,
or assumed public office on or after March 11, 2010" in Section 1(a) of E.O. No. 2 UNCONSTITUTIONAL for
unduly expanding the scope of the prohibition on appointments under Section 15, Article VII of the 1987
Constitution; and

3. DENY the petitions for review on certiorari insofar as they seek (i) to uphold the petitioners' respective
appointments and (ii) their reinstatement to the positions they held immediately prior to the issuance of
E.O. No. 2.

ARTURO D. BRION

Associate Justice

G.R. No. 180771 April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g., TOOTHED WHALES,
DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in and Represented herein by Human
Beings Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the
Lesser Life-Forms and as Responsible Stewards of God's Creations, Petitioners,

vs.

SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), SECRETARY
JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and Natural Resources
(DENR), LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII and in his capacity as Chairperson
of the Tañon Strait Protected Seascape Management Board, Bureau of Fisheries and Aquatic Resources
(BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES M. BOJOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY
OILFIELD SERVICES, INC. Respondents.

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

661
G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL, RAMON YANONG,
FRANCISCO LABID, in their personal capacity and as representatives of the SUBSISTENCE FISHERFOLKS OF
THE MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE
PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED,
Petitioners,

vs.

SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), JOSE L.
ATIENZA, in his capacity as Secretary of the Department of Environment and Natural Resources (DENR),
LEONARDO R. SIBBALUCA, in his capacity as DENR Regional Director-Region VII and as Chairperson of the
Tañon Strait Protected Seascape Management Board, ALAN ARRANGUEZ, in his capacity as Director -
Environmental Management Bureau-Region VII, DOE Regional Director for Region VIII1 ANTONIO LABIOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY
OILFIELD SERVICES, INC., Respondents.

CONCURRING OPINION

"Until one has loved an animal,

a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their personal
capacity, alleging that they stand to benefit or be injured from the judgment on the issues. The human
petitioners implead themselves in a representative capacity "as legal guardians of the lesser life-forms
and as responsible stewards of God's Creations."1 They use Oposa v. Factoran, Jr.2 as basis for their claim,
asserting their right to enforce international and domestic environmental laws enacted for their benefit

662
under the concept of stipulation pour autrui.3 As the representatives of Resident Marine Mammals, the
human petitioners assert that they have the obligation to build awareness among the affected residents
of Tañon Strait as well as to protect the environment, especially in light of the government's failure, as
primary steward, to do its duty under the doctrine of public trust.4

Resident Marine Mammals and the human petitioners also assert that through this case, this court will
have the opportunity to lower the threshold for locus standi as an exercise of "epistolary jurisdiction."5

The zeal of the human petitioners to pursue their desire to protect the environment and to continue to
define environmental rights in the context of actual cases is commendable. However, the space for legal
creativity usually required for advocacy of issues of the public interest is not so unlimited that it should
be allowed to undermine the other values protected by current substantive and procedural laws. Even
rules of procedure as currently formulated set the balance between competing interests. We cannot
abandon these rules when the necessity is not clearly and convincingly presented.

The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were able
to communicate with them; and (d) they received clear consent from their animal principals that they
would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.

Fundamental judicial doctrines that may significantly change substantive and procedural law cannot be
founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already been
liberalized to take into consideration the difficulties in the assertion of environmental rights. When
standing becomes too liberal, this can be the occasion for abuse.

II

663
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be authorized
by statute to be parties in a civil action.

Basic is the concept of natural and juridical persons in our Civil Code:

ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every
natural person and is lost only through death. Capacity to act, which is the power to do acts with legal
effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all purposes
that are favorable to it, provided it be born later with the conditions specified 'in the following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law; their
personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which the law grants a
juridical personality, separate and distinct from that of each shareholder, partner or member.

664
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine Mammals or
animals. This we cannot do.

Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of the real party in interest. (2a)6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in interest.7
When a case is brought to the courts, the real party in interest must show that another party's act or
omission has caused a direct injury, making his or her interest both material and based on an enforceable
legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in interest. A representative may be a trustee of an
express rust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things belonging to the principal.(3a)9

The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real party
in interest.10 The representative is an outsider to the cause of action. Second, the rule provides a list of
who may be considered as "representatives." It is not an exhaustive list, but the rule limits the coverage
only to those authorized by law or the Rules of Court.11

These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals are
real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to act in a
representative capacity.

665
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction, the issue of
whether animals have legal standing before courts has been the subject of academic discourse in light of
the emergence of animal and environmental rights.

In the United States, anim4l rights advocates have managed to establish a system which Hogan explains
as the "guardianship model for nonhuman animals":13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may obtain
judicial review to enforce their statutory rights and protections: guardianships. With court approval,
animal advocacy organizations may bring suit on behalf of nonhuman animals in the same way court-
appointed guardians bring suit on behalf of mentally-challenged humans who possess an enforceable right
but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural Objects,
Christopher D. Stone asserts that the environment should possess the right to seek judicial redress even
though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate challenges -
such as identifying the proper spokesman -the American legal system is already well-equipped with a
reliable mechanism by which nonhumans may obtain standing via a judicially established guardianship.
Stone notes that other speechless - and nonhuman - entities such as corporations, states, estates, and
municipalities have standing to bring suit on their own behalf. There is little reason to fear abuses under
this regime as procedures for removal and substitution, avoiding conflicts of interest, and termination of
a guardianship are well established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court
indicated that AL VA might have obtained standing in its own right if it had an established history of
dedication to the cause of the humane treatment of animals. It noted that the Fund for Animals had
standing and indicated that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established prior to commencing
legal action. ALVA was not the proper plaintiff because it could not identify previous activities
demonstrating its recognized activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified organization with a demonstrated
commitment to a cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.

666
This Comment advocates a shift in contemporary standing doctrine to empower non-profit organizations
with an established history of dedication to the cause and relevant expertise to serve as official guardians
ad !item on behalf of nonhuman animals interests. The American legal system has numerous mechanisms
for representing the rights and interests of nonhumans; any challenges inherent in extending these pre-
existing mechanisms to nonhuman animals are minimal compared to an interest in the proper
administration of justice. To adequately protect the statutory rights of nonhuman animals, the legal
system must recognize those statutory rights independent of humans and provide a viable means of
enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not new and has been urged
on behalf of the natural environment. 'Such a model is even more compelling as applied to nonhuman
animals, because they are sentient beings with the ability to feel pain and exercise rational thought. Thus,
animals are qualitatively different from other legally protected nonhumans and therefore have interests
deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the integrity
of the federal statutes designed to protect them, essentially rendering them meaningless. Sensing that
laws protecting nonhuman animals would be difficult to enforce, Congress provided for citizen suit
provisions: the most well-known example is found in the Endangered Species Act (ESA). Such provisions
are evidence of legislative intent to encourage civic participation on behalf of nonhuman animals. Our law
of standing should reflect this intent and its implication that humans are suitable representatives of the
natural environment, which includes nonhuman animals.14 (Emphasis supplied, citation omitted)

When a court allows guardianship as a basis of representation, animals are considered as similarly situated
as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive disability), are
unable to bring suit for themselves. They are also similar to entities that by their very nature are incapable
of speaking for themselves (e.g., corporations, states, and others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same cannot
be said about animals.

Animals play an important role in households, communities, and the environment. While we, as humans,
may feel the need to nurture and protect them, we cannot go as far as saying we represent their best
interests and can, therefore, speak for them before the courts. As humans, we cannot be so arrogant as
to argue that we know the suffering of animals and that we know what remedy they need in the face of
an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court for the

667
Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that an
emotional response to what humans perceive to be an injury inflicted on an animal is not within the "zone-
of-interest" protected by law.16 Such sympathy cannot stand independent of or as a substitute for an
actual injury suffered by the claimant.17 The ability to represent animals was further limited in that case
by the need to prove "genuine dedication" to asserting and protecting animal rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing doctrine
further required ALVA to differentiate its genuine dedication to the humane treatment of animals from
the general disdain for animal cruelty shared by the public at large. In doing so, the court found ALVA 's
asserted organizational injury to be abstract and thus relegated ALVA to the ranks of the "concerned
bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court
indicated that ALVA might have obtained standing in its own right if it had an established history of
dedication to the cause of the humane treatment of animals. It noted that the Fund for Animals had
standing and indicated that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established prior to commencing
legal action. ALVA was not the proper plaintiff because it could not identify previous activities
demonstrating its recognized activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified organization with a demonstrated
commitment to a cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.18 (Emphasis supplied, citation omitted)

What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental Cases.
A citizen suit allows any Filipino to act as a representative of a party who has enforceable rights under
environmental laws before Philippine courts, and is defined in Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations yet
unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a
citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and
the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a
general circulation in the Philippines or furnish all affected barangays copies of said order.

668
There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans seriously
carry their responsibility including ensuring a viable ecology for themselves, which of course includes
compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given to
the rule on standing. While representatives are not required to establish direct injury on their part, they
should only be allowed to represent after complying with the following: [I]t is imperative for them to
indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the interest
of those they represent must be based upon concrete legal rights. It is not sufficient to draw out a
perceived interest from a general, nebulous idea of a potential "injury."20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental concerns
in light of emerging international legal principles. While "intergenerational responsibility" is a noble
principle, it should not be used to obtain judgments that would preclude future generations from making
their own assessment based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a different set of
circumstances. In essence, the unbridled resort to representative suit will inevitably result in preventing
future generations from protecting their own rights and pursuing their own interests and decisions. It
reduces the autonomy of our children and our children 's children. Even before they are born, we again
restricted their ability to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be allowed only
when a) there is a clear legal basis for the representative suit; b) there are actual concerns based squarely
upon an existing legal right; c) there is no possibility of any countervailing interests existing within the
population represented or those that are yet to be born; and d) there is an absolute necessity for such
standing because there is a threat of catastrophe so imminent that an immediate protective measure is
necessary. Better still, in the light of its costs and risks, we abandon the precedent all together.23

669
(Emphasis in the original)

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or she
who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In other
words, he or she must have a cause of action. An action may be dismissed on the ground of lack of cause
of action if the person who instituted it is not the real party in interest.24 The term "interest" under the
Rules of Court must refer to a material interest that is not merely a curiosity about or an "interest in the
question involved." The interest must be present and substantial. It is not a mere expectancy or a future,
contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as representative
of a .real party in interest. When an action is prosecuted or defended by a representative, that
representative is not and does not become the real party in interest. The person represented is deemed
the real party in interest. The representative remains to be a third party to the action instituted on behalf
of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an identified
party whose right has been violated, resulting in some form of damage, and (b) the representative
authorized by law or the Rules of Court to represent the victim."

The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under this
rule allows any Filipino citizen to file an action for the enforcement of environmental law on behalf of
minors or generations yet unborn. It is essentially a representative suit that allows persons who are not
real parties in interest to institute actions on behalf of the real party in interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet unborn
is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity of minors
(represented by their parents) to file a class suit on behalf of succeeding generations based on the concept
of intergenerational responsibility to ensure the future generation's access to and enjoyment of [the]
country's natural resources.

670
To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit, putting
into. question its representativeness. Second, varying interests may potentially result in arguments that
are bordering on political issues, the resolutions of which do not fall upon this court. Third, automatically
allowing a class or citizen's suit on behalf of minors and generations yet unborn may result in the
oversimplification of what may be a complex issue, especially in light of the impossibility of determining
future generation's true interests on the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others. Uninterested
persons will argue for the persons they represent, and the court will decide based on their evidence and
arguments. Any decision by the court will be binding upon the beneficiaries, which in this case are the
minors and the future generations. The court's decision will be res judicata upon them and conclusive
upon the issues presented.25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its potential to
diminish the value of legitimate environmental rights. Extending the application of "real party in interest"
to the Resident Marine Mammals, or animals in general, through a judicial pronouncement will potentially
result in allowing petitions based on mere concern rather than an actual enforcement of a right. It is
impossible for animals to tell humans what their concerns are. At best, humans can only surmise the
extent of injury inflicted, if there be any. Petitions invoking a right and seeking legal redress before this
court cannot be a product of guesswork, and representatives have the responsibility to ensure that they
bring "reasonably cogent, rational, scientific, well-founded arguments"26 on behalf of those they
represent.

Creative approaches to fundamental problems should be welcome. However, they should be considered
carefully so that no unintended or unwarranted consequences should follow. I concur with the approach
of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it carefully narrows down
the doctrine in terms of standing. Resident Marine Mammals and the human petitioners have no legal
standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk Development
Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest and as representatives
of subsistence fisherfolks of the Municipalities of Aloguinsan and Pinamungahan, Cebu, and their families,
and the present and future generations of Filipinos whose rights are similarly affected. The activities
undertaken under Service Contract 46 (SC-46) directly affected their source of livelihood, primarily felt
through the significant reduction of their fish harvest.27 The actual, direct, and material damage they
suffered, which has potential long-term effects transcending generations, is a proper subject of a legal

671
suit.

III

In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners, most
especially when the implied petitioner was a sitting President of the Republic of the Philippines. In G.R.
No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of whales, dolphins,
porpoises, and other cetacean species, human petitioners also impleaded Former President Gloria
Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and undertaking in the ASEAN
Charter to protect Tañon Strait."28

No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent. In
our jurisdiction, only when there is a party that should have been a necessary party but was unwilling to
join would there be an allegation as to why that party has been omitted. In Rule 3, Section 9 of the 1997
Rules of Civil Procedure:

SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why
he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion
of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver
of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to the rights of such necessary party.29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should be
impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the 1997
Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.30

672
The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but who
do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does not
consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions by
suing his or her alter-egos. The procedural situation caused by petitioners may have gained public
attention, but its legal absurdity borders on the contemptuous. The Former President's name should be
stricken out of the title of this case.

IV

I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected Areas
System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as a protected
seascape. It is unconstitutional because it violates the fourth paragraph of Article XII, Section 2 of the
Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII, Section 2,
paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd. (JAPEX) is 100%
Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a technical and financial
assistance agreement executed under Article XII, Section 2, paragraph 4 of the 1987 Constitution.33 Public
respondents counter that SC-46 does not fall under the coverage of paragraph 1, but is a validly executed
contract under paragraph 4.34· Public respondents further aver that SC-46 neither granted exclusive
fishing rights to JAPEX nor violated Central Visayas Fisherfolk Development Center's right to preferential
use of communal marine and fishing resources.35

VI

Article XII, Section 2 of the 1987 Constitution states:

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Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-
five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial
use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and
lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution. (Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development, and use of
natural resources, but only through either financial agreements or technical ones. This is the clear import
of the words "either financial or technical assistance agreements." This is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and 1935
Constitution:

1973 CONSTITUTION

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ARTICLE XIV

THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION

SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or association
at least sixty per centum of the capital of which is owned by such citizens. The Batasang Pambansa, in the
national interest, may allow such citizens, corporations, or associations to enter into service contracts for
financial, technical, management, or other forms of assistance with any foreign person or entity for the
exploitation, development, exploitation, or utilization of any of the natural resources. Existing valid and
binding service contracts for financial, the technical, management, or other forms of assistance are hereby
recognized as such. (Emphasis supplied)

1935 CONSTITUTION

ARTICLE XIII

CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural resources, with
the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant.

The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded discussion of
Constitutional Commissions, on the other hand, may result in dependence on incomplete authorship;
Besides, it opens judicial review to further subjectivity from those who spoke during the Constitutional
Commission deliberations who may not have predicted how their words will be used. It is safer that we
use the words already in the Constitution. The Constitution was their product. Its words were read by

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those who ratified it. The Constitution is what society relies upon even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the standards
set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36

Such service contracts may be entered into only with respect to minerals, petroleum and other mineral
oils. The grant thereof is subject to several safeguards, among which are these requirements:

(1) The service contract shall be crafted m accordance with a general law that will set standard or uniform
terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the
possible insertion of terms disadvantageous to the country.

(2) The President shall be the signatory for the government because, supposedly before an agreement is
presented to the President for signature, it will have been vetted several times over at different levels to
ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that
branch of government an opportunity to look over the agreement and interpose timely objections, if
any.37 (Emphasis in the original, citation omitted)

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three important
points: (a) whether SC-46 was crafted in accordance with a general law that provides standards, terms,
and conditions; (b) whether SC-46 was signed by the President for and on behalf of the government; and
(c) whether it was reported by the President to Congress within 30 days of execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972.1âwphi1 It is my opinion that this law is unconstitutional in that
it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:

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The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President may enter
into with foreign-owned corporations for exploration and utilization of resources means that service
contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of the 1987
Constitution,38 this inconsistency renders the law invalid and ineffective.

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided the
rights and obligations of the parties should it be discovered that there is oil in commercial quantities in
the area. The Tañon Strait being a protected seascape under Presidential Decree No. 123439 requires that
the exploitation and utilization of energy resources from that area are explicitly covered by a law passed
by Congress specifically for that purpose, pursuant to Section 14 of Republic Act No. 7586 or the National
Integrated Protected Areas System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted
to the President for recommendation to Congress. Any exploitation and utilization of energy resources
found within NIP AS areas shall be allowed only through a law passed by Congress.40 (Emphasis supplied)

No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities could have
been validly undertaken under SC-46. The National Integrated Protected Areas System Act of 1992 is clear
that exploitation and utilization of energy resources in a protected seascape such as Tañon Strait shall
only be allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the requirement
set by paragraph 4 of Article XII, Section 2 for service contracts involving the exploration of petroleum.
SC-46 was entered into by then Department of Energy Secretary Vicente S. Perez, Jr., on behalf of the

677
government. I agree with the Main Opinion that in cases where the Constitution or law requires the
President to act personally on the matter, the duty cannot be delegated to another public official.41 La
Bugal highlights the importance of the President's involvement, being one of the constitutional safeguards
against abuse and corruption, as not mere formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations,
as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term service contracts
in referring to agreements x x x involving either technical or financial assistance. • They spoke of service
contracts as the concept was understood in the 1973 Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate service contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would eliminate or m
minimize the abuses prevalent during the marital law regime.42 (Emphasis in the original)

Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in the
signing or execution of SC-46. The failure to comply with this constitutional requirement renders SC-46
null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the execution and
existence of SC-46. The reporting requirement is an equally important requisite to the validity of any
service contract involving the exploration, development, and utilization of Philippine petroleum. Public
respondents' failure to report to Congress about SC-46 effectively took away any opportunity for the
legislative branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under paragraph 4 of
Article XII, Section 2. It is, therefore, null and void.

678
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null and
void for being violative of environmental laws protecting Tañon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas System
Act of 1992.

As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the National
Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all components of
the natural environment particularly the effect of increasing population, resource exploitation and
industrial advancement and recognizing the critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on areas with biologically unique features
to sustain human life and development, as well as plant and animal life, it is hereby declared the policy of
the State to secure for the Filipino people of present and future generations the perpetual existence of all
native plants and animals through the establishment of a comprehensive system of integrated protected
areas within the classification of national park as provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological values
that may be incorporated into a holistic plan representative of our natural heritage; that effective
administration of these areas is possible only through cooperation among national government, local and
concerned private organizations; that the use and enjoyment of these protected areas must be consistent
with the principles of biological diversity and sustainable development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall
encompass outstanding remarkable areas and biologically important public lands that are habitats of rare
and endangered species of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as "protected areas."44 (Emphasis
supplied)

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact
Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of the
management plan for protected areas shall be subject to an environmental impact assessment as required
by law before they are adopted, and the results thereof shall be taken into consideration in the decision-
making process.45 (Emphasis supplied)

679
The same provision further requires that an Environmental Compliance Certificate be secured under the
Philippine Environmental Impact Assessment System before arty project is implemented:

No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry them
out in such manner as will minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.46
(Emphasis supplied)

In projects involving the exploration or utilization of energy resources, the National Integrated Protected
Areas System Act of 1992 additionally requires that a program be approved by the Department of
Environment and Natural Resources, which shall be publicly accessible. The program shall also be
submitted to the President, who in turn will recommend the program to Congress. Furthermore, Congress
must enact a law specifically allowing the exploitation of energy resources found within a protected area
such as Tañon Strait:

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted
to the President for recommendation to Congress. Any exploitation and utilization of energy resources
found within NIPAS areas shall be allowed only through a taw passed by Congress.47 (Emphasis supplied)

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46 fell
under Section 14 of the National Integrated Protected Areas System Act of 1992, which they interpret to
be an exception to Section 12. They argue that the Environmental Compliance Certificate is not a strict
requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve or natural park; (b)
the exploration was merely for gathering information; and ( c) measures were in place to ensure that the
exploration caused the least possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992 was
enacted to recognize the importance of protecting the environment in light of resource exploitation,
among others.50 Systems are put in place to secure for Filipinos local resources under the most favorable
conditions. With the status of Tañon Strait as a protected seascape, the institution of additional legal
safeguards is even more significant.

680
Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based on
the records, JAPEX commissioned an environmental impact evaluation only in the second subphase of its
project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007.51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any environmental
assessment contrary to Section 12 of the National Integrated Protected Areas System Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient species, we do
not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use to survive
and to thrive. We are not incapable of mitigating the greed that is slowly causing the demise of our planet.
Thus, there is no need for us to feign representation of any other species or some imagined unborn
generation in filing any action in our courts of law to claim any of our fundamental rights to a healthful
ecology. In this way and with candor and courage, we fully shoulder the responsibility deserving of the
grace and power endowed on our species.

ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former President Gloria
Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987 Constitution, Republic Act
No. 7586, and Presidential Decree No. 1234.

MARVIC M.V.F. LEONEN

Associate Justice

G.R. No. 189028 July 16, 2013

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NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST FOR LITERATURE BIENVENIDO
LUMBERA, NATIONAL ARTIST FOR VISUAL ARTS (PAINTING) BENEDICTO CABRERA, NATIONAL ARTIST FOR
VISUAL ARTS (SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST FOR VISUAL ARTS (PAINTING AND
SCULPTURE) ARTURO LUZ, NATIONAL ARTIST FOR PRODUCTION DESIGN SALVADOR BERNAL, UNIVERSITY
PROFESSOR EMERITUS GEMINO ABAD, DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF LAW), DEAN
DANILO SILVESTRE (UP COLLEGE OF ARCHITECTURE), DEAN ROLAND TOLENTINO (UP COLLEGE OF MASS
COMMUNICATION), PROF. JOSE DALISAY, DR. ANTON JUAN, DR. ALEXANDER CORTEZ, DR. JOSE NEIL
GARCIA, DR. PEDRO JUN CRUZ REYES, PROF. JOSE CLAUDIO GUERRERO, PROF. MICHAEL M. COROZA,
PROF. GERARD LICO, PROF. VERNE DE LA PENA, PROF. MARIAN ABUAN, PROF. THEODORE O. TE, DR.
CRISTINA PANTOJA-HIDALGO, PROF. JOSE WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF. NICOLO DEL
CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON REMOTO, PROF. PRISCELINA PATAJOLEGASTO,
PROF. BELEN CALINGACION, PROF. AMIEL Y. LEONARDIA, PROF. VIM NADERA, PROF. MARILYN CANTA,
PROF. CECILIA DELA PAZ, ROF. CHARLSON ONG, PROF. CLOD MARLON YAMBAO, PROF. KENNETH
JAMANDRE, PROF. JETHRO JOAQUIN, ATTY. F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX ANGELES, MR.
FERNANDO JOSEF, MS. SUSAN S. LARA, MR. ALFRED YUSON, MS. JING PANGANIBANMENDOZA, MR.
ROMULO BAQUIRAN, JR., MR. CARLJOE JAVIER, MS. REBECCA T. ANONUEVO, MR. JP ANTHONY D.
CUNADA, MS. LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS, MR. GIL OLEA MENDOZA, MR.
EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR. ANGELO R. LACUESTA, MS. ANNA MARIA
KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY PERIQUET, MS. CARLA PACIS, MR. J. ALBERT GAMBOA,
MR. CESAR EVANGELISTA BUENDIA, MR. PAOLO ALCAZAREN, MR. ALWYN C. JAVIER, MR. RAYMOND
MAGNO GARLITOS, MS. GANG BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA, MS. JUDITH TORRES,
MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS. CAMILLE DE LA ROSA, MR. JAMES LADIORAY,
MR. RENATO CONSTANTINO, JR., and CONCERNED ARTISTS OF THE PHILIPPINES (CAP), Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
CULTURAL CENTER OF THE PHILIPPINES, THE NATIONAL COMMISSION ON CULTURE AND THE ARTS, MS.
CECILE GUIDOTE-ALVAREZ, MR. CARLO MAGNO JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO
MANOSA, AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING UNDER THEIR INSTRUCTIONS, DIRECTION,
CONTROL AND SUPERVISION IN RELATION TO THE CONFERMENT OF THE ORDER OF THE NATIONAL
ARTIST AND THE RELEASE OF FUNDS IN RELATION TO THE CONFERMENT OF THE HONORS AND PRIVILEGES
OF THE ORDER OF NATIONAL ARTISTS ON RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS, MORENO AND
MANOSA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Art has traditionally been viewed as the expression of everything that is true, good and beautiful. As such,

682
it is perceived to evoke and produce a spirit of harmony. Art is also considered as a civilizing force, a
catalyst of nation-building. The notion of art and artists as privileged expressions of national culture
helped shape the grand narratives of the nation and shared symbols of the people. The artist does not
simply express his/her own individual inspiration but articulates the deeper aspirations of history and the
soul of the people.2 The law recognizes this role and views art as something that "reflects and shapes
values, beliefs, aspirations, thereby defining a people’s national identity."3 If unduly politicized, however,
art and artists could stir controversy and may even cause discord, as what happened in this case.

The Antecedents

History of the Order of National Artists

On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 10014 and, upon
recommendation of the Board of Trustees of the Cultural Center of the Philippines (CCP), created the
category of Award and Decoration of National Artist to be awarded to Filipinos who have made distinct
contributions to arts and letters. In the same issuance, Fernando Amorsolo was declared as the first
National Artist.

On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001 "by creating a
National Artists Awards Committee" that would "administer the conferment of the category of National
Artist" upon deserving Filipino artists. The Committee, composed of members of the Board of Trustees of
the CCP, was tasked to "draft the rules to guide its deliberations in the choice of National Artists, to the
end that those who have created a body of work in the arts and letters capable of withstanding the test
of time will be so recognized."

The authority of the National Artists Awards Committee to administer the conferment of the National
Artist Award was again reiterated in Presidential Decree No. 2086 issued on June 7, 1973.

On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National Commission
for Culture and the Arts, was signed into law. It established the National Commission for Culture and the
Arts (NCCA) and gave it an extensive mandate over the development, promotion and preservation of the
Filipino national culture and arts and the Filipino cultural heritage. The NCCA was tasked with the
following:

Sec. 8. The Commission. – A National Commission for Culture and Arts is hereby created to formulate
policies for the development of culture and arts; implement these policies in coordination with affiliated
cultural agencies; coordinate the implementation of programs of these affiliated agencies; administer the

683
National Endowment Fund for Culture and Arts (NEFCA); encourage artistic creation within a climate of
artistic freedom; develop and promote the Filipino national culture and arts; and preserve Filipino cultural
heritage. The Commission shall be an independent agency. It shall render an annual report of its activities
and achievements to the President and to Congress.

Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend recognition of artistic
achievement through awards, grants and services to artists and cultural groups which contribute
significantly to the Filipino’s cultural legacy."7 In connection with this mandate, the NCCA is vested with
the power to "advise the President on matters pertaining to culture and the arts, including the creation
of a special decoration or award, for persons who have significantly contributed to the development and
promotion of Philippine culture and arts."8

As both the CCP Board of Trustees and the NCCA have been mandated by law to promote, develop and
protect the Philippine national culture and the arts, and authorized to give awards to deserving Filipino
artists, the two bodies decided to team up and jointly administer the National Artists Award.9 Thereafter,
they reviewed the guidelines for the nomination, selection and administration of the National Artists
Award. Pursuant to their respective powers to draft and promulgate rules, regulations and measures to
guide them in their deliberations in the choice of National Artists, the CCP and NCCA adopted the following
revised guidelines in September 200710:

4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the Arts (NCCA) shall plan, organize and implement the
Order of National Artists in coordination with the Cultural Center of the Philippines (CCP).

4.2. It shall enlist the support and cooperation of private sector experts from the various fields of art to
ensure that the awards are implemented in a successful and impartial manner.

4.3. The National Artist Award Secretariat shall commission art experts to form a Special Research Group
who shall verify information submitted on nominees and provide essential data.

They shall be selected for their specialization and familiarity with the works and accomplishments of
nominated artists.

4.4. The Special Research Group shall be composed of ten (10) to twenty (20) members who have

684
expertise in one or more fields or disciplines.

4.5. The National Artist Award Council of Experts shall be created before or during the nomination period.
It is tasked to screen nominees and recommend to the NCCA and CCP Boards the candidates for the Order
of National Artists. It shall be composed of highly regarded peers, scholars, (including cultural
philosophers and historians), academicians, researchers, art critics, and other knowledgeable individuals.
A wider age-range of experts who would have first-hand knowledge of achievements of nominees shall
be considered.

4.6. The selection of the members of the National Artist Award Council of Experts shall be based on the
following criteria:

(a) should have achieved authority, credibility and track record in his field(s) of expertise;

(b) should have extensive knowledge in his field(s) and his views on Philippine art and culture must be
national in perspective;

(c) should be a recognized authority in the study or research of Philippine art and culture;

(d) must be willing to devote sufficient time and effort to the work of the Council;

(e) must be willing to sign a non-disclosure statement in order to safeguard the confidentiality of the
deliberations;

(f) must not have been convicted with finality of any crime by a court of justice or dismissed for cause by
any organization, whether public or private.

4.7. The National Artist Award Council of Experts shall be composed of a maximum of seven (7) members
each of the seven (7) areas/disciplines. The living National Artists will automatically become members in
addition to the forty-nine (49) selected members. These members will constitute the first deliberation
panel and will be invited to evaluate the nominations and materials submitted by the Special Research
Group.

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4.8. Any member of the Council of Experts who is nominated or related to a nominee up to the fourth
degree of consanguinity or affinity shall inhibit himself/herself from the deliberation process. Likewise,
any member may decline to participate in the deliberation for any reason or may be removed for just
cause upon recommendation to the NCCA Board by at least two thirds (2/3) of the members; in which
case, the National Artist Award Secretariat shall again select the replacements for those who decline or
resigned until the first deliberation panel is completed.

4.9. The list of nominated members of the National Artist Award Council of Experts shall be reviewed by
the National Artist Award Secretariat as needed, for purposes of adding new members or replacements.

4.10. The members of the National Artist Award Council of Experts shall serve for a fixed term of three (3)
years.

5. CRITERIA FOR SELECTION

The Order of National Artists shall be given to:

5.1 Living artists who are Filipino citizens at the time of nomination, as well as those who died after the
establishment of the award in 1972 but were Filipino citizens at the time of their death.

5.2 Artists who through the content and form of their works have contributed in building a Filipino sense
of nationhood.

5.3. Artists who have pioneered in a mode of creative expression or style, thus, earning distinction and
making an impact on succeeding generations of artists.

5.4. Artists who have created a substantial and significant body of works and/or consistently displayed
excellence in the practice of their art form thus enriching artistic expression or style.

5.5 Artists who enjoy broad acceptance through:

5.5.1. prestigious national and/or international recognition, such as the Gawad CCP Para sa Sining, CCP
Thirteen Artists Award and NCCA Alab ng Haraya

686
5.5.2. critical acclaim and/or reviews of their works

5.5.3. respect and esteem from peers.

6. NOMINATION PROCEDURE

6.1. The National Artist Award Secretariat shall announce the opening of nominations through media
releases and letters to qualified organizations.

6.2. Candidates may be nominated under one or more of the following categories:

6.2.1. Dance – choreography, direction and/or performance.

6.2.2. Music – composition, direction, and/or performance.

6.2.3. Theater – direction, performance and/or production design.

6.2.4. Visual Arts – painting, sculpture, printmaking, photography, installation art, mixed media works,
illustration, comics/komiks, graphic arts, performance art and/or imaging.

6.2.5. Literature – poetry, fiction (short story, novel and play); non-fiction (essay, journalism, literary
criticism and historical literature).

6.2.6. Film and Broadcast Arts – direction, writing, production design, cinematography, editing, camera
work, and/or performance.

6.2.7. Architecture, Design and Allied Arts – architecture design, interior design, industrial arts design,
landscape architecture and fashion design.

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6.3. Nominations for the Order of National Artists may be submitted by government and non-government
cultural organizations and educational institutions, as well as private foundations and councils.

6.4. Members of the Special Research Group, as well as agencies attached to the NCCA and CCP shall not
submit nominations.

6.5. NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are automatically
disqualified from being nominated.

6.6. Nominations shall be accepted only when these are submitted in writing and with proper supporting
documentation, as follows:

6.6.1. A cover letter signed by the head or designated representative of the nominating organization.

The cover letter shall be accompanied by a Board Resolution approving the nominee concerned with the
said resolution signed by the organization President and duly certified by the Board Secretary.

6.6.2. A duly accomplished nomination form;

6.6.3. A detailed curriculum vitae of the nominee;

6.6.4. A list of the nominee’s significant works categorized according to the criteria;

6.6.5. The latest photograph (color or black and white) of the nominee, either 5" x 7" or 8" x 11";

6.6.6. Pertinent information materials on the nominee’s significant works (on CDs, VCDs and DVDs);

6.6.7. Copies of published reviews;

6.6.8. Any other document that may be required.

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6.7. Nominations received beyond the announced deadline for the submission of nominations shall not
be considered.

6.8. The National Artist Award Secretariat shall announce the opening of nominations through media
releases.

6.9. All inquiries and nominations shall be submitted to

The NATIONAL ARTIST AWARD SECRETARIAT

Office of the Artistic Director Cultural Center of the Philippines Roxas Boulevard, 1300 Pasay City or The
NATIONAL ARTIST AWARD SECRETARIAT Office of the Deputy Executive Director National Commission for
Culture and the Arts 633 General Luna Street, Intramuros, Manila

7. SCREENING AND SELECTION PROCESS

7.1. The National Artist Award Secretariat shall pre-screen the nominees based on technical guideline
items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-screening shall not be based on the accomplishments and
merits of the nominee.

7.2. The Special Research Group shall accomplish its task within six (6) months. The main objective is to
verify the validity of the data, and evaluate the quality, true value and significance of works according to
the criteria. It shall come up with the updated and comprehensive profiles of nominees reflecting their
most outstanding achievements.

7.3. The National Artist Award Secretariat will meet to review the list of nominees for oversights.
Consequently, deserving nominees shall be added to the list.

7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary. The panelists shall be
grouped according to their respective fields of expertise or disciplines to shortlist the nominees in their
disciplines or categories for presentation to the second deliberation panel.

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7.5. The second deliberation panel shall be composed of a different set of experts from the first
deliberation panel three (3) experts each of the seven (7) areas/discipline and may include members from
varying backgrounds such as critics and academicians. The achievements of each shortlisted nominee shall
be presented by one designated member of Council of Experts. Then panel deliberates and ranks the
shortlisted nominees according to the order of precedence following the set criteria of the Order of
National Artists. In extreme cases, the Second Deliberation may add new names to the lists.

7.6. The second deliberation panel may recommend not to give award in any category if no nominee is
found deserving. The number of awardees shall also depend on the availability of funds. All decisions and
recommendations shall be in writing.

7.7. The recommendations from the Second Deliberation Panel of the National Artist Award Council of
Experts shall then be presented to the joint boards of NCCA and CCP for final selection. The presentors
shall prepare their presentation in writing together with an audio-visual presentation or powerpoint
presentation. Written interpellations/opinions will be accepted from selected critics. The review shall be
based on the ranking done by the Second Deliberation. The voting shall be across disciplines. The National
Artists will be given the option whether to vote on all categories or on his/her particular discipline.

7.8. Proxy votes will not be allowed in the Selection Process. Designation of permanent representatives
of agencies should be made at the outset to make them regular Board members of NCCA and thus, may
be allowed to cast votes.

7.9. The list of awardees shall be submitted to the President of the Republic of the Philippines for
confirmation, proclamation and conferral.

8. PRESENTATION OF THE AWARDS

8.1. The Order of National Artists shall not be conferred more frequently than every three (3) years.

8.2. The Order of National Artists shall be conferred by the President of the Philippines on June 11 or any
appropriate date in fitting ceremonies to be organized by the National Artist Secretariat.

8.3. The medallion of the Order of National Artists and citation shall be given to the honoree during the
conferment ceremony. The cash award of P100,000.00 in cheque shall be given immediately after the
ceremony or at another time and place as requested by the honoree.

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8.4. A posthumous conferral consisting of the medallion and citation shall be given to the family or legal
heir/s of the honoree. The cash award of P75,000.00 in cheque shall be given to the honoree’s legal heir/s
or a representative designated by the family immediately after the ceremony or at another time and place
as requested by the family. (Emphases supplied.)

In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the NCCA
Executive Director as Chairperson, the CCP President as Vice-Chairperson, and the NCCA Deputy Executive
Director, the CCP Vice-President/Artistic Director, the NCCA National Artist Award Officer and the CCP
National Artist Award Officer as members. They also centralized with the NCCA all financial resources and
management for the administration of the National Artists Award. They added another layer to the
selection process to involve and allow the participation of more members of the arts and culture sector
of the Philippines in the selection of who may be proclaimed a National Artist.

On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors Code of the
Philippines to Create an Order of Precedence of Honors Conferred and for Other Purposes, was issued.
The National Artists Award was renamed the Order of National Artists and raised to the level of a Cultural
Order, fourth in precedence among the orders and decorations that comprise the Honors of the
Philippines. Executive Order No. 236, s. 2003, recognizes the vital role of the NCCA and the CCP in
identifying Filipinos who have made distinct contributions to arts and letters and states that the National
Artist recognition is conferred "upon the recommendation of the Cultural Center of the Philippines and
the National Commission for Culture and the Arts."12 Executive Order No. 236, s. 2003, further created a
Committee on Honors to "assist the President in evaluating nominations for recipients of Honors,"13
including the Order of National Artists, and presidential awards. The Committee on Honors has been
allowed to "authorize relevant department or government agencies to maintain Honors and/or Awards
Committees to process nominations for Honors and/or Presidential Awards."14 In this connection, Section
2.4(A) of the Implementing Rules and Regulations15 of Executive Order No. 236, s. 2003, states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various awards
committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the following:

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The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on Honors via
the Chancellery of Philippine Orders and State Decorations. The Chancellery shall process nominations for
the consideration of the Committee on Honors. The Committee on Honors shall screen and recommend
these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that
nominations received from the various awards committees meet two tests: that there has not been an
abuse of discretion in making the nomination, and that the nominee is in good standing. Should a
nomination meet these criteria, a recommendation to the President for conferment shall be made.

The President of the Philippines takes the recommendations of the Committee on Honors in the highest
consideration when making the final decision on the conferment of awards. (Emphasis supplied.)

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No. 236 Entitled
"Establishing the Honors Code of the Philippines to Create an Order of Precedence of Honors Conferred
and for Other Purposes" was subsequently issued on June 8, 2005. It amended the wording of Executive
Order No. 236, s. 2003, on the Order of National Artists and clarified that the NCCA and the CCP "shall
advise the President on the conferment of the Order of National Artists."

Controversy Surrounding the 2009

Order of National Artists

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Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of Commissioners and
the CCP Board of Trustees was held to discuss, among others, the evaluation of the 2009 Order of National
Artists and the convening of the National Artist Award Secretariat. The nomination period was set for
September 2007 to December 31, 2007, which was later extended to February 28, 2008. The pre-screening
of nominations was held from January to March 2008.16

On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered during
the deliberation and a preliminary shortlist19 of 32 names was compiled.

On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new set of Council
of Experts met and shortlisted 13 out of the 32 names in the preliminary shortlist.20 On May 6, 2009, the
final deliberation was conducted by the 30-member Final Deliberation Panel comprised of the CCP Board
of Trustees and the NCCA Board of Commissioners and the living National Artists.21 From the 13 names
in the second shortlist, a final list of four names was agreed upon.22 The final list, according to rank,
follows:

Name Art Field/Category Number of Votes

Manuel Conde (+) Film and Broadcast Arts (Film) 26

Ramon Santos Music 19

Lazaro Francisco (+) Literature 15

Federico Aguilar-Alcuaz Visual Arts 15

On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary Vilma Labrador,
and the President and Artistic Director of the CCP, Mr. Nestor Jardin, was sent to the President.23 The
letter stated, thus:

May 6, 2009

Her Excellency GLORIA MACAPAGAL-ARROYO

President of the Philippines

Malacañan Palace, Manila

Subject: 2009 Order of National Artist Awardees

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Dear President Arroyo:

We are respectfully submitting a recommendation of the NCCA Board of Trustees and CCP Board of
Trustees for the Proclamation of the following as 2009 Order of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) – Film and Broadcast Arts

2. Dr. RAMON SANTOS – Music

3. Mr. LAZARO FRANCISCO+ (Posthumous) – Literature

4. Mr. FEDERICO AGUILAR-ALCUAZ – Visual Arts

The above persons were identified by experts in the various fields of arts and culture, including living
National Artists. An intensive selection process was observed following established practice. In the past,
awards were presented by the President at a Ceremony held at the Malacañan Palace followed by a
program called "Parangal" at the Cultural Center of the Philippines. We also propose to continue with past
practice of celebrating the life and works of the four (4) Order of National Artists through an exhibit that
will open and a commemorative publication that will be released on the day of the proclamation.

We respectfully suggest, subject to Her Excellency’s availability, that the Proclamation be on June 11,
2009, if possible at the Malacañan Palace.

Thank you for your kind attention.

Very respectfully yours,

(Sgd.)

VILMA L. LABRADOR

Chairman

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National Commission for Culture and the Arts

(Sgd.)

NESTOR O. JARDIN

President and Artistic Director

Cultural Center of the Philippines24

According to respondents, the aforementioned letter was referred by the Office of the President to the
Committee on Honors. Meanwhile, the Office of the President allegedly received nominations from
various sectors, cultural groups and individuals strongly endorsing private respondents Cecile Guidote-
Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa and Jose Moreno. The Committee on Honors
purportedly processed these nominations and invited resource persons to validate the qualifications and
credentials of the nominees.25

The Committee on Honors thereafter submitted a memorandum to then President Gloria Macapagal-
Arroyo recommending the conferment of the Order of National Artists on the four recommendees of the
NCCA and the CCP Boards, as well as on private respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno. Acting on this recommendation, Proclamation No. 1823 declaring Manuel Conde a National
Artist was issued on June 30, 2009. Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were
issued declaring Lazaro Francisco, Federico AguilarAlcuaz and private respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno, respectively, as National Artists. This was subsequently announced to the
public by then Executive Secretary Eduardo Ermita on July 29, 2009.26

Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and the CCP Board
of Trustees to select those who will be conferred the Order of National Artists and to set the standard for
entry into that select group, petitioners instituted this petition for prohibition, certiorari and injunction
(with prayer for restraining order) praying that the Order of National Artists be conferred on Dr. Santos
and that the conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno be enjoined and declared to have been rendered in grave abuse of discretion.27

In a Resolution28 dated August 25, 2009, the Court issued a status quo order29 enjoining "public
respondents" "from conferring the rank and title of the Order of National Artists on private respondents;
from releasing the cash awards that accompany such conferment and recognition; and from holding the
acknowledgment ceremonies for recognition of the private respondents as National Artists."

What is the nature and scope of the power of the President to confer the Order of the National Artists

695
and how should it be exercised? This is the essential issue presented in this case. It will determine whether
the proclamation of respondents as National Artists is valid. Preliminary procedural issues on the standing
of the petitioners and the propriety of the remedies taken,30 however, call for resolution as a prerequisite
to the discussion of the main question.

Contention of the Parties

A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation of at least
three groups, the National Artists, cultural workers and academics, and the Concerned Artists of the
Philippines (CAP). The National Artists assert an "actual as well as legal interest in maintaining the
reputation of the Order of National Artists."31 In particular, they invoke their right to due process not to
have the honor they have been conferred with diminished by the irregular and questionable conferment
of the award on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. For petitioners, this would
adversely affect their right to live a meaningful life as it detracts not only from their right to enjoy their
honor as a fruit of their lifelong labor but also from the respect of their peers.32

The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned with the
preservation of the country’s rich cultural and artistic heritage. As taxpayers, they are concerned about
the use of public monies for illegal appointments or spurious acts of discretion.33

All of the petitioners claim that former President Macapagal-Arroyo gravely abused her discretion in
disregarding the results of the rigorous screening and selection process for the Order of National Artists
and in substituting her own choice for those of the Deliberation Panels. According to petitioners, the
President’s discretion to name National Artists is not absolute but limited. In particular, her discretion on
the matter cannot be exercised in the absence of or against the recommendation of the NCCA and the
CCP. In adding the names of respondents Caparas, Guidote-Alvarez, Mañosa and Moreno while dropping
Dr. Santos from the list of conferees, the President’s own choices constituted the majority of the awardees
in utter disregard of the choices of the NCCA and the CCP and the arts and culture community which were
arrived at after a long and rigorous process of screening and deliberation. Moreover, the name of Dr.
Santos as National Artist for Music was deleted from the final list submitted by the NCCA and the CCP
Boards without clearly indicating the basis thereof. For petitioners, the President’s discretion to name
National Artists cannot be exercised to defeat the recommendations made by the CCP and NCCA Boards
after a long and rigorous screening process and with the benefit of expertise and experience. The addition
of four names to the final list submitted by the Boards of the CCP and the NCCA and the deletion of one
name from the said list constituted a substitution of judgment by the President and a unilateral
reconsideration without clear justification of the decision of the First, Second and Final Deliberation
Panels composed of experts.34

Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and unethical because,

696
as the then Executive Director of the NCCA and presidential adviser on culture and arts, she was
disqualified from even being nominated.35 Moreover, such action on the part of the former President
constituted grave abuse of discretion as it gave preferential treatment to respondent Guidote-Alvarez by
naming the latter a National Artist despite her not having been nominated and, thus, not subjected to the
screening process provided by the rules for selection to the Order of National Artists. Her inclusion in the
list by the President represented a clear and manifest favor given by the President in that she was
exempted from the process that all other artists have to undergo. According to petitioners, it may be said
that the President used a different procedure to qualify respondent Guidote-Alvarez. This was clearly
grave abuse of discretion for being manifest and undue bias violative of the equal protection clause.36

Respondent Caparas refutes the contention of the petitioning National Artists and insists that there could
be no prejudice to the latter. They remain to be National Artists and continue to receive the emoluments,
benefits and other privileges pertaining to them by virtue of that honor. On the other hand, all the other
petitioners failed to show any material and personal injury or harm caused to them by the conferment of
the Order of National Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The rule on
standing may not be relaxed in favor of the petitioners as no question of constitutionality has been raised
and no issue of transcendental importance is involved.37

Respondent Caparas further argues that the remedies of prohibition and injunction are improper as the
act sought to be enjoined – the declaration of respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno as National Artists – had already been consummated. In particular, respondent Caparas was
already proclaimed National Artist through Proclamation No. 1827 issued on July 6, 2009.38

On the merits, respondent Caparas contends that no grave abuse of discretion attended his proclamation
as National Artist. The former President considered the respective recommendations of the NCCA and the
CCP Boards and of the Committee on Honors in eventually declaring him (Caparas) as National Artist. The
function of the NCCA and the CCP Boards is simply to advise the President. The award of the Order of
National Artists is the exclusive prerogative of the President who is not bound in any way by the
recommendation of the NCCA and the CCP Boards. The implementing rules and regulations or guidelines
of the NCCA cannot restrict or limit the exclusive power of the President to select the recipients of the
Order of National Artists.39

For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that she was
waiving her right to file her comment on the petition and submitted herself to the Court’s discretion and
wisdom.

Respondent Mañosa manifested that his creations speak for themselves as his contribution to Filipino
cultural heritage and his worthiness to receive the award. Nonetheless, he expressed his conviction that
the Order of National Artists is not a right but a privilege that he would willingly relinquish should he be

697
found not worthy of it.41

Respondent Moreno did not file any pleading despite being given several opportunities to do so. Hence,
the Court dispensed with his pleadings.42

In a Resolution dated July 12, 2011, this Court gave due course to the petition and required the parties to
file their respective memoranda.43 Respondent Caparas filed his memorandum on September 8, 2011,44
the CCP filed its memorandum on September 19, 2011,45 respondent Mañosa on September 20, 2011,46
and the Office of the Solicitor General filed a manifestation stating that it is adopting its comment as its
memorandum on September 21, 2011.47 Respondent Moreno failed to file a Memorandum, hence, the
Court resolved to dispense with the same.48 Petitioners filed their Memorandum on May 14, 2012.49

On the other hand, the original position of the Office of the Solicitor General (OSG) was similar to that of
respondent Caparas.50 In a subsequent manifestation,51 however, the OSG stated that the current Board
of Commissioners of the NCCA agree with the petitioners that the President cannot honor as a National
Artist one who was not recommended by the joint Boards of the NCCA and the CCP. The implementing
rules and regulations of Executive Order No. 236, s. 2003, recognized the binding character of the
recommendation of the NCCA and the CCP Boards and limited the authority of the Committee on Honors
to the determination that (1) there has been no grave abuse of discretion on the part of the NCCA and the
CCP Boards in making the nomination, and (2) the nominee is in good standing. Where a nomination meets
the said two criteria, a recommendation to the President to confer the award shall be made.52

The OSG further argued that, while the President exercises control over the NCCA and the CCP, the
President has the duty to faithfully execute the laws, including the NCCA-CCP guidelines for selection of
National Artists and the implementing rules of Executive Order No. 236, s. 2003. Moreover, the laws
recognize the expertise of the NCCA and the CCP in the arts and tasked them to screen and select the
artists to be conferred the Order of National Artists. Their mandate is clear and exclusive as no other
agency possesses such expertise.53

The OSG also assailed the former President’s choice of respondent Guidote-Alvarez for being contrary to
Republic Act No. 7356.54 Section 11 of the said law provides:

Sec. 11. Membership Restrictions. – During his/her term as member of the Commission, a Commissioner
shall not be eligible for any grant, or such other financial aid from the Commission as an individual:
Provided, however, That he/she may compete for grants and awards on the same level as other artists
one (1) year after his/her term shall have expired.

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The omission of the word "award" in the first portion of the above provision appears to be unintentional
as shown by the proviso which states that a member may compete for grants and awards only one year
after his or her term shall have expired. As such, respondent Guidote-Alvarez is restricted and disqualified
from being conferred the 2009 Order of National Artists.55

The Court’s Ruling

Standing of the Petitioners

Standing is the determination of whether a specific person is the proper party to bring a matter to the
court for adjudication.56 The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.57

The parties who assail the constitutionality or legality of a statute or an official act must have a direct and
personal interest. They must show not only that the law or any governmental act is invalid, but also that
they sustained or are in immediate danger of sustaining some direct injury as a result of its enforcement,
and not merely that they suffer thereby in some indefinite way. They must show that they have been or
are about to be denied some right or privilege to which they are lawfully entitled or that they are about
to be subjected to some burdens or penalties by reason of the statute or act complained of.58

In this case, we find that the petitioning National Artists will be denied some right or privilege to which
they are entitled as members of the Order of National Artists as a result of the conferment of the award
on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. In particular, they will be denied the
privilege of exclusive membership in the Order of National Artists.

In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National Artists is "an
exclusive association of honored individuals." To ensure the exclusivity of the membership in the Order,
a rigid nomination and screening process has been established with different sets of renowned artists and
respected art critics invited to sit as the Council of Experts for the First and Second Deliberation Panels.
Moreover, all living National Artists are given a voice on who should be included in their exclusive club as
they automatically become members of the Final Deliberation Panel that will vote on who should be
included in the final list to be submitted to the President for conferment of the Order of National Artists.
To allow the untrammeled discretion and authority of the President to confer the Order of National Artists
without regard to the stringent screening and rigorous selection process established by the NCCA and the
CCP will diminish, if not negate, the exclusive nature of the said Order. It will unduly subject the selection
and conferment of the Order of National Artists to politics rather than to principles and procedures. It will

699
subvert the transparent and rigorous process and allow entry to the exclusive Order of National Artists
through a secret backdoor of lobbying, back channeling and political accommodation.

Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and substantial interest.
Like respondents Caparas, Mañosa and Moreno, he was among the 87 nominees for the 2009 Order of
National Artists. Like respondent Moreno, he made it to the preliminary shortlist. As he did not make it to
the second shortlist, he was not considered by the Final Deliberation Panel, more so by the former
President.

It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated for being the
Executive Director of the NCCA at that time while respondents Mañosa and Caparas did not make it to
the preliminary shortlist and respondent Moreno was not included in the second shortlist. Yet, the four
of them were treated differently and considered favorably when they were exempted from the rigorous
screening process of the NCCA and the CCP and conferred the Order of National Artists. The Committee
on Honors and the former President effectively treated respondents Guidote-Alvarez, Caparas, Mañosa
and Moreno as a preferred class. The special treatment accorded to respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno fails to pass rational scrutiny.60 No real and substantial distinction between
respondents and petitioner Abad has been shown that would justify deviating from the laws, guidelines
and established procedures, and placing respondents in an exceptional position. The undue classification
was not germane to the purpose of the law. Instead, it contradicted the law and well-established
guidelines, rules and regulations meant to carry the law into effect. While petitioner Abad cannot claim
entitlement to the Order of National Artists,61 he is entitled to be given an equal opportunity to vie for
that honor. In view of the foregoing, there was a violation of petitioner Abad’s right to equal protection,
an interest that is substantial enough to confer him standing in this case.

As regards the other concerned artists and academics as well as the CAP, their claim of deep concern for
the preservation of the country’s rich cultural and artistic heritage, while laudable, falls short of the injury
in fact requirement of standing. Their assertion constitutes a generalized grievance shared in a
substantially equal measure by all or a large class of citizens.62 Nor can they take refuge in their status as
taxpayers as the case does not involve any illegal appropriation or taxation. A taxpayer’s suit is proper
only when there is an exercise of the spending or taxing power of the Congress.63

Nonetheless, as a reading of the petition shows that it has advanced an issue which deserves the attention
of this Court in view of its seriousness, novelty and weight as precedent, it behooves the Court to relax
the rules on standing and to resolve the issue presented before it.64 Moreover, this issue is of paramount
interest,65 which further justifies a liberal stance on standing.

Propriety of the Remedies

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The present action is a petition for prohibition, certiorari, injunction, restraining order and all other legal,
just and equitable reliefs.

It has been held that the remedies of prohibition and injunction are preventive and, as such, cannot be
availed of to restrain an act that is already fait accompli.66 Where the act sought to be prohibited or
enjoined has already been accomplished or consummated, prohibition or injunction becomes moot.67

Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits for the
future guidance of both bench and bar. Courts will decide a question otherwise moot and academic if it is
"capable of repetition, yet evading review."68

It is an opportune time for the Court to assert its role as republican schoolmaster,69 a teacher in a vital
national seminar.70 There are times when the controversy is of such character that, to prevent its
recurrence and to assure respect for constitutional limitations, this Court must pass on the merits of a
case.71 This is one such case. More than being a teaching moment, this is not the first time that the Order
of National Artists was conferred in the manner that is being assailed in this case.72 If not addressed here
and now, there is great probability that the central question involved in this case will haunt us again in
the future. Every President may invoke absolute presidential prerogative and thrust upon us National
Artists after his or her own heart, in total disregard of the advise of the CCP and the NCCA and the voice
of the community of artists, resulting to repeated episodes of indignation and uproar from the artists and
the public.

Furthermore, if not corrected, such an act would give rise to mischief and dangerous precedent whereby
those in the corridors of power could avoid judicial intervention and review by merely speedily and
stealthily completing the commission of an illegality.73

In any event, the present petition is also for certiorari and there is no procedural bar for the Court to pass
upon the question of whether the proclamations of respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno as National Artists were attended by grave abuse of presidential discretion.

Limits of the President’s Discretion

The respective powers of the CCP Board of Trustees and of the NCCA Board of Commissioners with respect
to the conferment of the Order of National Artists are clear. They jointly administer the said award and,
upon their recommendation or advice, the President confers the Order of National Artists.

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To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or counsel."74 To
"advise" is "to give an opinion or counsel, or recommend a plan or course of action; also to give notice.
To encourage, inform or acquaint."75 "Advise" imports that it is discretionary or optional with the person
addressed whether he will act on such advice or not.76 This has been clearly explained in Cojuangco, Jr.
v. Atty. Palma77:

The "power to recommend" includes the power to give "advice, exhortation or indorsement, which is
essentially persuasive in character, not binding upon the party to whom it is made." (Emphasis supplied.)

Thus, in the matter of the conferment of the Order of National Artists, the President may or may not adopt
the recommendation or advice of the NCCA and the CCP Boards. In other words, the advice of the NCCA
and the CCP is subject to the President’s discretion.

Nevertheless, the President’s discretion on the matter is not totally unfettered, nor the role of the NCCA
and the CCP Boards meaningless.

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it
from straying. In its classic formulation, "discretion is not unconfined and vagrant" but "canalized within
banks that keep it from overflowing."78

The President’s power must be exercised in accordance with existing laws. Section 17, Article VII of the
Constitution prescribes faithful execution of the laws by the President:

Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed. (Emphasis supplied.)

The President’s discretion in the conferment of the Order of National Artists should be exercised in
accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best
construed as an obligation imposed on the President, not a separate grant of power.79 It simply
underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws
but is obliged to obey and execute them.80 This is precisely why the law provides that "administrative or
executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the
Constitution."81

702
In this connection, the powers granted to the NCCA and the CCP Boards in connection with the conferment
of the Order of National Artists by executive issuances were institutionalized by two laws, namely,
Presidential Decree No. 208 dated June 7, 1973 and Republic Act No. 7356. In particular, Proclamation
No. 1144 dated May 15, 1973 constituted the CCP Board as the National Artists Awards Committee and
tasked it to "administer the conferment of the category of National Artist" upon deserving Filipino artists
with the mandate to "draft the rules to guide its deliberations in the choice of National Artists":

Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National Artist, is
hereby amended by creating a National Artists Awards Committee, hereinafter to administer the
conferment of the category of National Artist upon those deserving thereof. The Committee, which shall
be composed of members of the Board of Trustees of the Cultural Center of the Philippines, shall organize
itself immediately and shall draft the rules to guide its deliberations in the choice of National Artists, to
the end that those who have created a body of work in the arts and in letters capable of withstanding the
test of time will be so recognized. (Emphases supplied.)

The authority of the CCP Board of Trustees as National Artists Awards Committee was reiterated in
Presidential Decree No. 208 dated June 7, 1973.

The function of the CCP Board of Trustees as National Artists Awards Committee has been recognized
under Republic Act No. 7356:

Sec. 18. The National Cultural Agencies. – The [NCCA] shall coordinate with the national cultural agencies
including but not limited to the Cultural Center of the Philippines, the Institute of Philippine Languages,
the National Historical Institute, the National Library, the National Museum, the Records Management
and Archives Office. However, they shall continue operating under their respective charters or as provided
by law where provisions therein are not inconsistent with the provisions of this Act. They shall serve as
the national repository and/or showcase, as the case may be, of the best of Philippine culture and arts.
For this purpose, these agencies shall submit periodic reports, including recommendations to the [NCCA].
(Emphasis supplied.)

On the other hand, the NCCA has been given the following mandate in connection with the conferment
of cultural or arts awards:

Sec. 12. Mandate. – The Commission is hereby mandated to formulate and implement policies and plans
in accordance with the principles stated in Title 1 of this Act.

(a) To encourage the continuing and balanced development of a pluralistic culture by the people

703
themselves, it shall:

xxxx

(4) extend recognition of artistic achievement through awards, grants and services to artists and cultural
groups which contribute significantly to the Filipino’s cultural legacy;

xxxx

Sec. 13. Powers and Functions. – To carry out its mandate, the Commission shall exercise the following
powers and functions:

xxxx

(j) advise the President on matters pertaining to culture and the arts, including the creation of a special
decoration or award, for persons who have significantly contributed to the development and promotion
of Philippine culture and arts;

(k) promulgate rules, regulations and undertake any and all measures as may be necessary to implement
this Act. (Emphases supplied.)

By virtue of their respective statutory mandates in connection with the conferment of the National Artist
Award, the NCCA and the CCP decided to work together and jointly administer the National Artist Award.
They reviewed the guidelines for the nomination, selection and administration of the National Artist
Award, created a National Artist Award Secretariat, centralized all financial resources and management
for the administration of the National Artist Award, and added another layer to the selection process so
that more members of the arts and culture sector of the Philippines may be involved and participate in
the selection of National Artists.

We have held that an administrative regulation adopted pursuant to law has the force and effect of law.82
Thus, the rules, guidelines and policies regarding the Order of National Artists jointly issued by the CCP
Board of Trustees and the NCCA pursuant to their respective statutory mandates have the force and effect
of law. Until set aside, they are binding upon executive and administrative agencies,83 including the
President himself/herself as chief executor of laws. In this connection, Section 2.5(A) of the Implementing

704
Rules and Regulations84 of Executive Order No. 236, s. 2003 provides:

2.5: General Guidelines for Awards Committees

A. National Orders of Cultural and Scientific Merit

The existing modalities of the NCCA for selecting recipients for the Order of National Artists, and the
Gawad sa Manlilikha ng Bayan, and of the NAST for selecting recipients of the Order of National Scientists,
shall remain in force. (Emphases supplied.)

Section 2.4(A) of the same implementing rules further states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various awards
committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

705
Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on Honors via
the Chancellery of Philippine Orders and State Decorations. The Chancellery shall process nominations for
the consideration of the Committee on Honors. The Committee on Honors shall screen and recommend
these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that
nominations received from the various awards committees meet two tests: that there has not been an
abuse of discretion in making the nomination, and that the nominee is in good standing. Should a
nomination meet these criteria, a recommendation to the President for conferment shall be made.

The President of the Philippines takes the recommendations of the Committee on Honors in the highest
consideration when making the final decision on the conferment of awards. (Emphasis supplied.)

Pursuant to the above provision of the implementing rules of Executive Order No. 236, s. 2003, the
authority of the Committee on Honors is limited to determining whether the nominations submitted by a
particular awards committee, in this case, the joint NCCA and CCP Boards, have been tainted by abuse of
discretion, and whether the nominees are in good standing. Should the nominations meet these two
criteria, the Committee on Honors shall make a recommendation to the President for conferment of the
Order of National Artists.

In view of the various stages of deliberation in the selection process and as a consequence of his/her duty
to faithfully enforce the relevant laws, the discretion of the President in the matter of the Order of
National Artists is confined to the names submitted to him/her by the NCCA and the CCP Boards. This
means that the President could not have considered conferment of the Order of National Artists on any
person not considered and recommended by the NCCA and the CCP Boards. That is the proper import of
the provision of Executive Order No. 435, s. 2005, that the NCCA and the CCP "shall advise the President
on the conferment of the Order of National Artists." Applying this to the instant case, the former President
could not have properly considered respondents Guidote-Alvarez, Caparas, Mañosa and Moreno, as their
names were not recommended by the NCCA and the CCP Boards. Otherwise, not only will the stringent
selection and meticulous screening process be rendered futile, the respective mandates of the NCCA and
the CCP Board of Trustees under relevant laws to administer the conferment of Order of National Artists,
draft the rules and regulations to guide its deliberations, formulate and implement policies and plans, and
undertake any and all necessary measures in that regard will also become meaningless.

706
Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of the NCCA at
that time, the Guidelines expressly provides:

6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are automatically
disqualified from being nominated.85

Respondent Guidote-Alvarez could not have even been nominated, hence, she was not qualified to be
considered and conferred the Order of National Artists at that time. The President’s discretion on the
matter does not extend to removing a legal impediment or overriding a legal restriction.

From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to the conferment
of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz was not binding on the former
President but only discretionary or optional for her whether or not to act on such advice or
recommendation. Also, by virtue of the power of control, the President had the authority to alter or
modify or nullify or set aside such recommendation or advice. It was well within the President’s power
and discretion to proclaim all, or some or even none of the recommendees of the CCP and the NCCA
Boards, without having to justify his or her action. Thus, the exclusion of Santos did not constitute grave
abuse of discretion on the part of the former President.

The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno was an entirely different matter.

There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal
bias.86

There was a violation of the equal protection clause of the Constitution87 when the former President gave
preferential treatment to respondents Guidote-Alvarez, Caparas, Mañosa and Moreno.1âwphi1 The
former President’s constitutional duty to faithfully execute the laws and observe the rules, guidelines and
policies of the NCCA and the CCP as to the selection of the nominees for conferment of the Order of
National Artists proscribed her from having a free and uninhibited hand in the conferment of the said
award. The manifest disregard of the rules, guidelines and processes of the NCCA and the CCP was an
arbitrary act that unduly favored respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The
conferment of the Order of National Artists on said respondents was therefore made with grave abuse of
discretion and should be set aside.

While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas, Mañosa

707
and Moreno as National Artists, such action should not be taken as a pronouncement on whether they
are worthy to be conferred that honor. Only the President, upon the advise of the NCCA and the CCP
Boards, may determine that. The Court simply declares that, as the former President committed grave
abuse of discretion in issuing Proclamation Nos. 1826 to 1829 dated July 6, 2009, the said proclamations
are invalid. However, nothing in this Decision should be read as a disqualification on the part of
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno to be considered for the honor of National
Artist in the future, subject to compliance with the laws, rules and regulations governing said award.

WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829 dated July 6, 2009
proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa, and Jose
Moreno, respectively, as National Artists are declared INVALID and

SET ASIDE for having been issued with grave abuse of discretion.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

G.R. No. 78239 February 9, 1989

SALVACION A. MONSANTO, petitioner,

vs.

FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a public officer, who has been
granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position
without need of a new appointment.

708
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto
(then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru
falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months
and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as
maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the
government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the
costs proportionately.

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She
then filed a motion for reconsideration but while said motion was pending, she was extended on
December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21,
1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to
her former post as assistant city treasurer since the same was still vacant.

Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision
of the Local Government Code transferring the power of appointment of treasurers from the city
governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled
that petitioner may be reinstated to her position without the necessity of a new appointment not earlier
than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that
the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied. 1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing
that the full pardon bestowed on her has wiped out the crime which implies that her service in the
government has never been interrupted and therefore the date of her reinstatement should correspond
to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the
entire period of her suspension; and that she should not be required to pay the proportionate share of
the amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further
review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran,
Jr. held:

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records,
petitioner was convicted of the crime for which she was accused. In line with the government's crusade
to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial,

709
77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675,
October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments
due to him during the period of his suspension pendente lite.

In fact, in such a situation, the former public official must secure a reappointment before he can reassume
his former position. ...

Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no
case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec.
36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic
reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her
former position and that, notwithstanding said absolute pardon, she is liable for the civil liability
concomitant to her previous conviction. 3

Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in
her behalf We gave due course on October 13, 1987.

Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact
that she was extended executive clemency while her conviction was still pending appeal in this Court.
There having been no final judgment of conviction, her employment therefore as assistant city treasurer
could not be said to have been terminated or forfeited. In other words, without that final judgment of
conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment
remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was
an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty
of the crime charged and has accordingly dismissed the same. 4

It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification
of public documents and sentenced to imprisonment of four years, two months and one day of prision
correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision
mayor carries the accessory penalties of temporary absolute disqualification and perpetual special
disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5
Temporary absolute disqualification bars the convict from public office or employment, such
disqualification to last during the term of the sentence. 6 Even if the offender be pardoned, as to the
principal penalty, the accessory penalties remain unless the same have been expressly remitted by the
pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from

710
public office. 8

The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of
pardon and its legal consequences. This is not totally unexpected considering that the authorities on the
subject have not been wholly consistent particularly in describing the effects of pardon.

The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But
Philippine jurisprudence on the subject has been largely influenced by American case law.

Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the
laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a
crime he has committed. It is the private, though official act of the executive magistrate, delivered to the
individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a
deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." 8-a

At the time the antecedents of the present case took place, the pardoning power was governed by the
1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:

The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit
fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9

The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final
conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional
pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under
the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is
our view that in the present case, it is not material when the pardon was bestowed, whether before or
after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed
to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the
character of finality.

Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon
in relation to the decisive question of whether or not the plenary pardon had the effect of removing the
disqualifications prescribed by the Revised Penal Code.

In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the

711
various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No.
47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning
power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out
the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion
that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict
or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be
at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from
the accessory and resultant disabilities of criminal conviction.

The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable
application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day
continue to hold sway in our jurisprudence despite the fact that much of its relevance has been
downplayed by later American decisions.

Consider the following broad statements:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when
the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed the offense. If granted before conviction, it
prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after
conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as
it were, a new man, and gives him a new credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of
authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most
extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic
approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the
eye of the law the offender is as innocent as though he never committed the offense, it does not operate
for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It
does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out
the moral stain. It involves forgiveness and not forgetfulness. 16

The better considered cases regard full pardon (at least one not based on the offender's innocence) as
relieving the party from all the punitive consequences of his criminal act, including the disqualifications
or disabilities based on the finding of guilt. 17 But it relieves him from nothing more. "To say, however,
that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore
the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted
criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may
regard him as more dangerous to society than one never found guilty of crime, though it places no

712
restraints upon him following his conviction." 18

A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief
for what has been suffered by the offender. It does not impose upon the government any obligation to
make reparation for what has been suffered. "Since the offense has been established by judicial
proceedings, that which has been done or suffered while they were in force is presumed to have been
rightfully done and justly suffered, and no satisfaction for it can be required." 20 This would explain why
petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not
guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong
observation: "To assume that all or even a major number of pardons are issued because of innocence of
the recipients is not only to indict our judicial system, but requires us to assume that which we all know
to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been
established by the most complete method known to modern civilization. Pardons may relieve from the
disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad
character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon
may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a
pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not
subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is
absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in
the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned
convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding
citizen.

Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public
manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account
in their subsequent dealings with the actor." 23

Pardon granted after conviction frees the individual from all the penalties and legal disabilities and
restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare),
it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This must be constantly kept
in mind lest we lose track of the true character and purpose of the privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement
with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office

713
necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly
restores his eligibility for appointment to that office. 26

The rationale is plainly evident Public offices are intended primarily for the collective protection, safety
and benefit of the common good. They cannot be compromised to favor private interests. To insist on
automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the
offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the
appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral
risk, or who is unsuitable by reason of the pardoned conviction.

For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public
office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of
public documents. It is clear from the authorities referred to that when her guilt and punishment were
expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply
for reappointment to the office which was forfeited by reason of her conviction. And in considering her
qualifications and suitability for the public post, the facts constituting her offense must be and should be
evaluated and taken into account to determine ultimately whether she can once again be entrusted with
public funds. Stated differently, the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that. To regain her former post
as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new
appointment.

Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by
the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised
Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served
by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by
the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the
debt, merger of the rights of creditor and debtor, compensation and novation. 27

WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr.,
dated April 15, 1986, is AFFIRMED. No costs.

SO ORDERED.

Narvasa, Paras, Gancayco, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., concurs in the result.

714
Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other
accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification
of public documents. After trial, the accused were convicted and sentenced to imprisonment of four (4)
years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1)
day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly
and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then
filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos
extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog,
the Ministry of Finance and the Office of the President, asked that she be allowed to re-assume her former
office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back salaries for
the entire period of her suspension, and that she be not required to pay her proportionate share of the
amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well
as her other claims, because of which denial, this petition for review on certiorari was filed before the
Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by
the President, she is entitled to reinstatement to her former position without need of a new appointment,
and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art.
36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right to hold
office, suffrage and on his civil liability. It states:

715
ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon
extended by the President to the petitioner did not per se entitle her to again hold public office (including
therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish
her civil liability for the criminal conviction, subject matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner was granted "an
absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein
expressly provides that the right to hold public office was thereby restored to the petitioner. In view of
the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless
the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the
pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of
such pardon, that right must be kept away from the petitioner.

It is a recognized principle in public law — hopefully to be honored more in its compliance rather than in
its breach — that a "public office is a public trust." The restoration of the right to hold public office to one
who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be
left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and
specific language. To require this would not be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino,
72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores
full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an absolute
pardon to work a restoration of the right to hold public office must expressly so state, in order to give
substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the
light of our times and experience.

716
ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the
separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements,
basically for my own clarification. Article 36 of the Revised Penal Code states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public office,
or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal
Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of
commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it that of
temporary absolute disqualification and that of perpetual special disqualification from the right of
suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.

717
Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry
with it that of suspension from public office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall
exceed eighteen months. The offender shall suffer the disqualification provided in this article although
pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
(Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa
through falsification of public documents, included the accessory penalties of temporary absolute
disqualification from public office or employment and perpetual special disqualification from the right of
suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a
standard printed form which states in printed words that it was "an absolute and unconditional pardon
[which] restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the right to
hold public office or employment are commonly regarded as "political rights," 2 it must be noted that
there are other "political rights" 3 and that the pardon given to petitioner did not expressly and in printer's
ink restore to petitioner the particular right to hold public office and the specific right to vote at elections
and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust,
Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to work the
restoration of such right to petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930.
I believe that they have been left intact by the constitutional provisions on pardon, whether one refers to
the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided
with any provision or principle embodied in either of our prior constitutions. The Chief Justice appears to
agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes
on, however, to say (in page 13) that: "the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be
an unconstitutional restriction on the pardoning power of the President. The limitation on the President's
pardoning power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et
al. merely require the President to become completely explicit if the pardon he extends is intended to
wipe out not merely the principal but also the accessory penalty of disqualification from holding public
office and from voting and to restore the recipient of the pardon to the exercise of such fundamental
political rights. Such requirement of explicitness seems entirely in line with the fundamental point made

718
by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In
other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the
public trust and sentenced to disqualification from voting and from holding such office, does not create
the presumption that the recipient of the pardon has thereby suddenly become morally eligible once
more to exercise the right to vote and to hold public office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public
office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed Resolution
of the then Executive Secretary Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other
accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification
of public documents. After trial, the accused were convicted and sentenced to imprisonment of four (4)
years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1)
day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly
and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then
filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos
extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog,
the Ministry of Finance and the Office of the President, asked that she be allowed to re-assume her former

719
office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back salaries for
the entire period of her suspension, and that she be not required to pay her proportionate share of the
amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well
as her other claims, because of which denial, this petition for review on certiorari was filed before the
Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by
the President, she is entitled to reinstatement to her former position without need of a new appointment,
and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art.
36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right to hold
office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon
extended by the President to the petitioner did not per se entitle her to again hold public office (including
therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish
her civil liability for the criminal conviction, subject matter of the pardon.

An examination of the presidential pardon in question shows that, while petitioner was granted "an
absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein
expressly provides that the right to hold public office was thereby restored to the petitioner. In view of
the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless
the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the
pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of
such pardon, that right must be kept away from the petitioner.

It is a recognized principle in public law-hopefully to be honored more in its compliance rather than in its
breach that a "public office is a public trust." The restoration of the right to hold public office to one who
has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left

720
to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and
specific language. To require this would not be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino,
72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores
full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an absolute
pardon to work a restoration of the right to hold public office must expressly so state, in order to give
substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the
light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the
separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements,
basically for my own clarification. Article 36 of the Revised Penal Code states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public office,
or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal
Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of

721
commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it that of
temporary absolute disqualification and that of perpetual special disqualification from the right of
suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry
with it that of suspension from public office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall
exceed eighteen months. The offender shall suffer the disqualification provided in this article although
pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
(Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa
through falsification of public documents, included the accessory penalties of temporary absolute
disqualification from public office or employment and perpetual special disqualification from the right of
suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a
standard printed form which states in printed words that it was "an absolute and unconditional pardon
[which] restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the right to
hold public office or employment are commonly regarded as "political rights," 2 it must be noted that
there are other "political rights" 3 and that the pardon given to petitioner did not expressly and in printer's
ink restore to petitioner the particular right to hold public office and the specific right to vote at elections
and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust,
Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to work the
restoration of such right to petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.

722
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930.
I believe that they have been left intact by the constitutional provisions on pardon, whether one refers to
the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided
with any provision or principle embodied in either of our prior constitutions. The Chief Justice appears to
agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes
on, however, to say (in page 13) that: "the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be
an unconstitutional restriction on the pardoning power of the President. The limitation on the President's
pardoning power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et
al. merely require the President to become completely explicit if the pardon he extends is intended to
wipe out not merely the principal but also the accessory penalty of disqualification from holding public
office and from voting and to restore the recipient of the pardon to the exercise of such fundamental
political rights. Such requirement of explicitness seems entirely in line with the fundamental point made
by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In
other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the
public trust and sentenced to disqualification from voting and from holding such office, does not create
the presumption that the recipient of the pardon has thereby suddenly become morally eligible once
more to exercise the right to vote and to hold public office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public
office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed Resolution
of the then Executive Secretary Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

G.R. No. 206666 January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,

ALFREDO S. LIM Petitioner-Intervenor,

vs.

COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.

DECISION

723
LEONARDO-DE CASTRO, J.:

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the
Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of
the writ of certiorari annulling and setting aside the April 1, 20131 and April 23, 20132 Resolutions of the
Commission on Elections (COMELEC), Second Division and En bane, respectively, in SPA No. 13-211 (DC),
entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having been rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (2) a Petition-in-Intervention3 filed by Alfredo
S. Lim (Lim), wherein he prays to be declared the 2013 winning candidate for Mayor of the City of Manila
in view of private respondent former President Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of
the Republic of the Philippines, for the crime of plunder in Criminal Case No. 26558, entitled "People of
the Philippines v. Joseph Ejercito Estrada, et al." The dispositive part of the graft court’s decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding
the accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime of
PLUNDER, defined in and penalized by Republic Act No. 7080, as amended. On the other hand, for failure
of the prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds the accused
Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly,
the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic Act
No. 7659, is Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances,
however, the lesser penalty shall be applied in accordance with Article 63 of the Revised Penal Code.
Accordingly, the accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of
sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under detention shall

724
be credited to him in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules
imposed upon convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659,
the Court hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One Thousand Pesos
(P545,291,000.00), with interest and income earned, inclusive of the amount of Two Hundred Million
Pesos (P200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (P189,000,000.00), inclusive of interests and
income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at #100 11th
Street, New Manila, Quezon City.

The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are hereby ordered
cancelled and released to the said accused or their duly authorized representatives upon presentation of
the original receipt evidencing payment thereof and subject to the usual accounting and auditing
procedures. Likewise, the hold-departure orders issued against the said accused are hereby recalled and
declared functus oficio.4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo)
extended executive clemency, by way of pardon, to former President Estrada. The full text of said pardon
states:

MALACAÑAN PALACE

MANILA

By the President of the Philippines

PARDON

725
WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant
executive clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and
imposed a penalty of Reclusion Perpetua. He is hereby restored to his civil and political rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes
issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his
tenure as President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two thousand
and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted"6 the pardon by
affixing his signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the position of
President. During that time, his candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-024
(DC), a "Petition to Deny Due Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao

726
Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as Presidential Candidate" filed
by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a "Petition to Disqualify Estrada Ejercito,
Joseph M.from Running as President due to Constitutional Disqualification and Creating Confusion to the
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate Resolutions8 dated January 20,
2010 by the COMELEC, Second Division, however, all three petitions were effectively dismissed on the
uniform grounds that (i) the Constitutional proscription on reelection applies to a sitting president; and
(ii) the pardon granted to former President Estrada by former President Arroyo restored the former’s right
to vote and be voted for a public office. The subsequent motions for reconsideration thereto were denied
by the COMELEC En banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada only
managed to garner the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a
petition for certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v. Joseph
‘ERAP’ Ejercito Estrada and Commission on Elections." But in a Resolution9 dated August 31, 2010, the
Court dismissed the aforementioned petition on the ground of mootness considering that former
President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a
Certificate of Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the City of Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification against
former President Estrada before the COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos
Vidal anchored her petition on the theory that "[Former President Estrada] is Disqualified to Run for Public
Office because of his Conviction for Plunder by the Sandiganbayan in Criminal Case No. 26558 entitled
‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing Him to Suffer the Penalty of Reclusion
Perpetuawith Perpetual Absolute Disqualification."11 She relied on Section 40 of the Local Government
Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC), which state respectively, that:

Sec. 40, Local Government Code:

SECTION 40. Disqualifications.- The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those

727
removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgmentfor subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any public office, unless he
has been given plenary pardon or granted amnesty. (Emphases supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for
disqualification, the fallo of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of merit.12

The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the consolidated
resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution
affirming it, this Commission will not be labor the controversy further. Moreso, [Risos-Vidal] failed to
present cogent proof sufficient to reverse the standing pronouncement of this Commission declaring
categorically that [former President Estrada’s] right to seek public office has been effectively restored by
the pardon vested upon him by former President Gloria M. Arroyo. Since this Commission has already
spoken, it will no longer engage in disquisitions of a settled matter lest indulged in wastage of government

728
resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated April 23,
2013.

On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She presented
five issues for the Court’s resolution, to wit:

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS

OF JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF
MANILA UNDER SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED OF
PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN DISMISSING THE PETITION FOR DISQUALIFICATION ON THE GROUND THAT THE CASE
INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA EJERCITO, JOSEPH M.
FROM RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT
OF SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING PUBLIC
OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS

OF JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT
ESTRADA IN THE FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE RESULTING FROM
HIS CRIMINAL CONVICTION FOR PLUNDER.14

While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted as
scheduled and former President Estrada was voted into office with 349,770 votes cast in his favor. The

729
next day, the local board of canvassers proclaimed him as the duly elected Mayor of the City of Manila.

On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved for
leave to intervene in this case. His motion was granted by the Court in a Resolution15 dated June 25, 2013.
Lim subscribed to Risos-Vidal’s theory that former President Estrada is disqualified to run for and hold
public office as the pardon granted to the latter failed to expressly remit his perpetual disqualification.
Further, given that former President Estrada is disqualified to run for and hold public office, all the votes
obtained by the latter should be declared stray, and, being the second placer with 313,764 votes to his
name, he (Lim) should be declared the rightful winning candidate for the position of Mayor of the City of
Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually
presents only one essential question for resolution by the Court, that is, whether or not the COMELEC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that former
President Estrada is qualified to vote and be voted for in public office as a result of the pardon granted to
him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former
President Estrada was conditional as evidenced by the latter’s express acceptance thereof. The
"acceptance," she claims, is an indication of the conditional natureof the pardon, with the condition being
embodied in the third Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office." She explains that the aforementioned
commitment was what impelled former President Arroyo to pardon former President Estrada, without it,
the clemency would not have been extended. And any breach thereof, that is, whenformer President
Estrada filed his Certificate of Candidacy for President and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be recommitted to prison to serve the unexpired portion of
his sentence x x x and disqualifies him as a candidate for the mayoralty [position] of Manila."16

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada mustbe
disqualified from running for and holding public elective office is actually the proscription found in Section
40 of the LGC, in relation to Section 12 ofthe OEC. She argues that the crime of plunder is both an offense
punishable by imprisonment of one year or more and involving moral turpitude; such that former
President Estrada must be disqualified to run for and hold public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the same did
not operate to make available to former President Estrada the exception provided under Section 12 of

730
the OEC, the pardon being merely conditional and not absolute or plenary. Moreover, Risos-Vidal puts a
premium on the ostensible requirements provided under Articles 36 and 41 of the Revised Penal Code, to
wit:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)

She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a general
statement that such pardon carries with it the restoration of civil and political rights. By virtue of Articles
36 and 41, a pardon restoring civil and political rights without categorically making mention what specific
civil and political rights are restored "shall not work to restore the right to hold public office, or the right
of suffrage; nor shall it remit the accessory penalties of civil interdiction and perpetual absolute
disqualification for the principal penalties of reclusion perpetua and reclusion temporal."17 In other
words, she considers the above constraints as mandatory requirements that shun a general or implied
restoration of civil and political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P.
Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he restoration of the right to hold
public office to one who has lost such right by reason of conviction in a criminal case, but subsequently
pardoned, cannot be left to inference, no matter how intensely arguable, but must be statedin express,
explicit, positive and specific language."

Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express restoration
is further demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x
x indubitably indicating that the privilege to hold public office was not restored to him."19

731
On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC, maintains
that "the issue of whether or not the pardon extended to [former President Estrada] restored his right to
run for public office had already been passed upon by public respondent COMELEC way back in 2010 via
its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada] disqualified to run and be voted as mayor of the
City of Manila in the absence of any new argument that would warrant its reversal. To be sure, public
respondent COMELEC correctly exercised its discretion in taking judicial cognizance of the aforesaid
rulings which are known toit and which can be verified from its own records, in accordance with Section
2, Rule 129 of the Rules of Court on the courts’ discretionary power to take judicial notice of matters
which are of public knowledge, orare capable of unquestionable demonstration, or ought to be known to
them because of their judicial functions."20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President Estrada’s]
conviction for plunder disqualifies him from running as mayor of Manila under Section 40 of the [LGC],
the subsequent grant of pardon to him, however, effectively restored his right to run for any public
office."21 The restoration of his right to run for any public office is the exception to the prohibition under
Section 40 of the LGC, as provided under Section 12 of the OEC. As to the seeming requirement of Articles
36 and 41 of the Revised Penal Code, i.e., the express restoration/remission of a particular right to be
stated in the pardon, the OSG asserts that "an airtight and rigid interpretation of Article 36 and Article 41
of the [RPC] x x x would be stretching too much the clear and plain meaning of the aforesaid provisions."22
Lastly, taking into consideration the third Whereas Clause of the pardon granted to former President
Estrada, the OSG supports the position that it "is not an integral part of the decree of the pardon and
cannot therefore serve to restrict its effectivity."23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed Resolutions."24

For his part, former President Estrada presents the following significant arguments to defend his stay in
office: that "the factual findings of public respondent COMELEC, the Constitutional body mandated to
administer and enforce all laws relative to the conduct of the elections, [relative to the absoluteness of
the pardon, the effects thereof, and the eligibility of former President Estrada to seek public elective
office] are binding [and conclusive] on this Honorable Supreme Court;" that he "was granted an absolute
pardon and thereby restored to his full civil and political rights, including the right to seek public elective
office such as the mayoral (sic) position in the City of Manila;" that "the majority decision in the case of
Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both Vidal and Lim as
authority for their respective claims, x x x reveal that there was no discussion whatsoever in the ratio
decidendi of the Monsanto case as to the alleged necessity for an expressed restoration of the ‘right to
hold public office in the pardon’ as a legal prerequisite to remove the subject perpetual special
disqualification;" that moreover, the "principal question raised in this Monsanto case is whether or not a

732
public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to
reinstatement toher former position without need of a new appointment;" that his "expressed
acceptance [of the pardon] is not proof that the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the casesfiled against him during his candidacy for President
back in 2009-2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or diminish the
pardoning power of the President expressly granted by the Constitution;" that the text of the pardon
granted to him substantially, if not fully, complied with the requirement posed by Article 36 of the Revised
Penal Code as it was categorically stated in the said document that he was "restored to his civil and
political rights;" that since pardon is an act of grace, it must be construed favorably in favor of the
grantee;25 and that his disqualification will result in massive disenfranchisement of the hundreds of
thousands of Manileños who voted for him.26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and political rights,
which naturally includes the right to seek public elective office, the focal point of this controversy. The
wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified.
It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective,
and constitutional interpretation of the language of the pardon is that the same in fact conforms to
Articles 36 and 41 of the Revised Penal Code. Recall that the petition for disqualification filed by Risos-
Vidal against former President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of
the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime punishable by
imprisonment of one year or more, and involving moral turpitude, former President Estrada must be
disqualified to run for and hold public elective office notwithstanding the fact that he is a grantee of a
pardon that includes a statement expressing "[h]e is hereby restored to his civil and political rights." Risos-
Vidal theorizes that former President Estrada is disqualified from running for Mayor of Manila inthe May
13, 2013 Elections, and remains disqualified to hold any local elective post despite the presidential pardon
extended to him in 2007 by former President Arroyo for the reason that it (pardon) did not expressly
provide for the remission of the penalty of perpetual absolute disqualification, particularly the restoration
of his (former President Estrada) right to vote and bevoted upon for public office. She invokes Articles 36
and 41 of the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President
Estrada does not actually specify which political right is restored, it could be inferred that former President
Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and to hold
public office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her intention
was the contrary, the same cannot be upheld based on the pardon’s text.

733
The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of executive
clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final
judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of
the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and
regulations shall be granted by the President without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President
may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction; and (3) cases involving violations of election laws, rules and regulations in which there
was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act
of Congress by way of statute cannot operate to delimit the pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935
Constitution,wherein the provision granting pardoning power to the President shared similar phraseology
with what is found in the present 1987 Constitution, the Court then unequivocally declared that "subject
to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action." The Court reiterated this pronouncement in Monsanto v. Factoran, Jr.29 thereby
establishing that, under the present Constitution, "a pardon, being a presidential prerogative, should not
be circumscribed by legislative action." Thus, it is unmistakably the long-standing position of this Court
that the exercise of the pardoning power is discretionary in the President and may not be interfered with
by Congress or the Court, except only when it exceeds the limits provided for by the Constitution.

734
This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of
Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the
framers of the 1987 Constitution when they flatly rejected a proposal to carve out an exception from the
pardoning power of the President in the form of "offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment of a law. The following is the pertinent
portion lifted from the Record of the Commission (Vol. II):

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the same
section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be limited
by legislation.

I suggest that this be deletedon the grounds that, first, violations of corrupt practices may include a very
little offense like stealing P10; second, which I think is more important, I get the impression, rightly or
wrongly, that subconsciously we are drafting a constitution on the premise that all our future Presidents
will bebad and dishonest and, consequently, their acts will be lacking in wisdom. Therefore, this Article
seems to contribute towards the creation of an anti-President Constitution or a President with vast
responsibilities but no corresponding power except to declare martial law. Therefore, I request that these
lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the fact that
similar to the provisions on the Commission on Elections, the recommendation of that Commission is
required before executive clemency isgranted because violations of the election laws go into the very
political life of the country.

735
With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that
subjected to the same condition because violation of our Corrupt Practices Law may be of such magnitude
as to affect the very economic systemof the country. Nevertheless, as a compromise, we provided here
that it will be the Congress that will provide for the classification as to which convictions will still require
prior recommendation; after all, the Congress could take into account whether or not the violation of the
Corrupt Practices Law is of such magnitude as to affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the Congress in its collective wisdom will exclude those petty
crimes of corruption as not to require any further stricture on the exercise of executive clemency because,
of course, there is a whale of a difference if we consider a lowly clerk committing malversation of
government property or funds involving one hundred pesos. But then, we also anticipate the possibility
that the corrupt practice of a public officer is of such magnitude as to have virtually drained a substantial
portion of the treasury, and then he goes through all the judicial processes and later on, a President who
may have close connections with him or out of improvident compassion may grant clemency under such
conditions. That is why we left it to Congress to provide and make a classification based on substantial
distinctions between a minor act of corruption or an act of substantial proportions. SR. TAN. So, why do
we not just insert the word GROSS or GRAVE before the word "violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or "GROSS" can
be misconstrued by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that is
precisely why it is called executive clemency. In this sentence, which the amendment seeks to delete, an
exception is being made. Congress, which is the legislative arm, is allowed to intrude into this prerogative
of the executive. Then it limits the power of Congress to subtract from this prerogative of the President
to grant executive clemency by limiting the power of Congress to only corrupt practices laws. There are
many other crimes more serious than these. Under this amendment, Congress cannot limit the power of
executive clemency in cases of drug addiction and drug pushing which are very, very serious crimes that
can endanger the State; also, rape with murder, kidnapping and treason. Aside from the fact that it is a
derogation of the power of the President to grant executive clemency, it is also defective in that it singles
out just one kind of crime. There are far more serious crimes which are not included.

736
MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is
anexecutive power. But even in the provisions on the COMELEC, one will notice that constitutionally, it is
required that there be a favorable recommendation by the Commission on Elections for any violation of
election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the Committee,
has explained in the committee meetings we had why he sought the inclusion of this particular provision.
May we call on Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article on
Accountability of Public Officers. Under it, it is mandated that a public office is a public trust, and all
government officers are under obligation to observe the utmost of responsibility, integrity, loyalty and
efficiency, to lead modest lives and to act with patriotism and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a public trust,
the violation is itself a violation not only of the economy but the moral fabric of public officials. And that
is the reason we now want that if there is any conviction for the violation of the Anti-Graft and Corrupt
Practices Act, which, in effect, is a violation of the public trust character of the public office, no pardon
shall be extended to the offender, unless some limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the Committee
left it entirely to the legislature to formulate the mechanics at trying, probably, to distinguish between
grave and less grave or serious cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this
is now the best time, since we have strengthened the Article on Accountability of Public Officers, to
accompany it with a mandate that the President’s right to grant executive clemency for offenders or
violators of laws relating to the concept of a public office may be limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

737
MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional
Commission that we are emasculating the powers of the presidency, and this provision to me is another
clear example of that. So, I speak against this provision. Even the 1935 and the 1973 Constitutions do not
provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in
sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we should remember
that above all the elected or appointed officers of our Republic, the leader is the President. I believe that
the country will be as the President is, and if we systematically emasculate the power of this presidency,
the time may come whenhe will be also handcuffed that he will no longer be able to act like he should be
acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

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

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I find
that the proposal of Commissioner Tan is worthy of approval of this body.

738
Why are we singling out this particular offense? There are other crimes which cast a bigger blot on the
moral character of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive in
deciding whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be Commissioner
Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-Graft
Court, so if this is allowed to stay, it would mean that the President’s power togrant pardon or reprieve
will be limited to the cases decided by the Anti-Graft Court, when as already stated, there are many
provisions inthe Revised Penal Code that penalize more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the exercise
of executive clemency, usually under Article V of the Revised Penal Code the judge will recommend such
exercise of clemency. And so, I am in favor of the amendment proposed by Commissioner Tan for the
deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the President. In

739
case of other criminals convicted in our society, we extend probation to them while in this case, they have
already been convicted and we offer mercy. The only way we can offer mercy to them is through this
executive clemency extended to them by the President. If we still close this avenue to them, they would
be prejudiced even worse than the murderers and the more vicious killers in our society. I do not think
they deserve this opprobrium and punishment under the new Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also because
of the objection of the main proponent, Commissioner Davide. So we feel that the Commissioners should
vote on this question.

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to delete the
last sentence of Section 17 appearing on lines 7, 8 and 9, please raise their hand. (Several Members raised
their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved.30 (Emphases
supplied.)

The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code

740
cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of the President to
pardon persons convicted of violating penal statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual
commands which must be strictly followed in order to free the beneficiary of presidential grace from the
disqualifications specifically prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)

A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis
non est recedendum. From the words of a statute there should be no departure.31 It is this Court’s firm
view that the phrase in the presidential pardon at issue which declares that former President Estrada "is
hereby restored to his civil and political rights" substantially complies with the requirement of express
restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express remission

741
and/or restoration of the rights of suffrage and/or to hold public office in the pardon granted to former
President Estrada, as required by Articles 36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by the
President, as they do not abridge or diminish the President’s power to extend clemency. He opines that
they do not reduce the coverage of the President’s pardoning power. Particularly, he states:

Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural
prescription. They are not concerned with areas where or the instances when the President may grant
pardon; they are only concerned with how he or she is to exercise such power so that no other
governmental instrumentality needs to intervene to give it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the
restoration of the rights of suffrage and to hold public office, or the remission of the accessory penalty of
perpetual absolute disqualification,he or she should do so expressly. Articles 36 and 41 only ask that the
President state his or her intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the
point, the President retains the power to make such restoration or remission, subject to a prescription on
the manner by which he or she is to state it.32

With due respect, I disagree with the overbroad statement that Congress may dictate as to how the
President may exercise his/her power of executive clemency. The form or manner by which the President,
or Congress for that matter, should exercise their respective Constitutional powers or prerogatives cannot
be interfered with unless it is so provided in the Constitution. This is the essence of the principle of
separation of powers deeply ingrained in our system of government which "ordains that each of the three
great branches of government has exclusive cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere."33 Moreso, this fundamental principle must be observed if
noncompliance with the form imposed by one branch on a co-equal and coordinate branch will result into
the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give
full effect to the executive clemency granted by the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the import of the pardon which emanated from the
Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions
must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for
such crimes and the power of the President to grant executive clemency. All that the said provisions
impart is that the pardon of the principal penalty does notcarry with it the remission of the accessory
penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes
the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only

742
clarify the effect of the pardon so decided upon by the President on the penalties imposedin accordance
with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the
principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first
sentence refers to the executive clemency extended to former President Estrada who was convicted by
the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal
penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that
"(h)e is hereby restored to his civil and political rights," expressly remitted the accessory penalties that
attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the textof the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together with the principal
penalty of reclusion perpetua.

In this jurisdiction, the right toseek public elective office is recognized by law as falling under the whole
gamut of civil and political rights.

Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and Reacquisition
Act of 2003," reads as follows:

Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to
exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing
laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the Republic of
the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they
renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice
their profession in the Philippines shall apply with the proper authority for a license or permit to engage
in such practice; and

743
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised
by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which theyare naturalized
citizens; and/or

(b) are in active service as commissioned or non commissioned officers in the armed forces of the country
which they are naturalized citizens. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a signatory,
acknowledges the existence of said right. Article 25(b) of the Convention states: Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article
2 and without unreasonable restrictions:

xxxx

(b) To vote and to be electedat genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors[.] (Emphasis
supplied.)

Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to the right
to seek public elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who
re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right
to run for public office. The petitioner’s failure to comply there with in accordance with the exact tenor
of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on
September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she
executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any
elective office in the Philippines. (Emphasis supplied.)

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally considered

744
as a political right. Hence, the Court reiterates its earlier statement that the pardon granted to former
President Estrada admits no other interpretation other than to mean that, upon acceptance of the pardon
granted tohim, he regained his FULL civil and political rights – including the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal provisions; and
prescribes a formal requirement that is not only unnecessary but, if insisted upon, could be in derogation
of the constitutional prohibition relative to the principle that the exercise of presidential pardon cannot
be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr.36 to justify her
argument that an absolute pardon must expressly state that the right to hold public office has been
restored, and that the penalty of perpetual absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R.
Padilla and Florentino P. Feliciano are to be respected, they do not form partof the controlling doctrine
nor to be considered part of the law of the land. On the contrary, a careful reading of the majority opinion
in Monsanto, penned by no less than Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36 and 41 of the Revised Penal Code
that will in effect require the President to use a statutorily prescribed language in extending executive
clemency, even if the intent of the President can otherwise be deduced from the text or words used in
the pardon. Furthermore, as explained above, the pardon here is consistent with, and not contrary to, the
provisions of Articles 36 and 41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of
the OEC was removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local position. Risos-
Vidal argues that former President Estrada is disqualified under item (a), to wit:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence[.]
(Emphasis supplied.)

745
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to wit:

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty.
(Emphasis supplied.)

As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies
him from running for the elective local position of Mayor of the City of Manila under Section 40(a) of the
LGC. However, the subsequent absolute pardon granted to former President Estrada effectively restored
his right to seek public elective office. This is made possible by reading Section 40(a) of the LGC in relation
to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms,
Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other
words, the latter provision allows any person who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold any
public office, whether local or national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local elective positions
is not unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the Court acknowledged the
aforementioned provision as one of the legal remedies that may be availed of to disqualify a candidate in
a local election filed any day after the last day for filing of certificates of candidacy, but not later than the
date of proclamation.38 The pertinent ruling in the Jalosjos case is quoted as follows:

What is indisputably clear is that false material representation of Jalosjos is a ground for a petition under
Section 78. However, since the false material representation arises from a crime penalized by prision
mayor, a petition under Section 12 ofthe Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12
or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law
expressly provides multiple remedies and the choice of which remedy to adopt belongs to petitioner.39
(Emphasis supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes
the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored.

746
This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering
the unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that a
preamble is not an essential part of an act as it is an introductory or preparatory clause that explains the
reasons for the enactment, usually introduced by the word "whereas."40 Whereas clauses do not form
part of a statute because, strictly speaking, they are not part of the operative language of the statute.41
In this case, the whereas clause at issue is not an integral part of the decree of the pardon, and therefore,
does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon
the fulfilment of the aforementioned commitment nor to limit the scope of the pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria
Gracia Padaca’s separate concurring opinion in the assailed April 1, 2013 Resolution of the COMELEC in
SPA No. 13-211 (DC), which captured the essence of the legal effect of preambular paragraphs/whereas
clauses, viz:

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude upon.
Here, Petitioner Risos-Vidal raised the same argument with respect to the 3rd "whereas clause" or
preambular paragraph of the decree of pardon. It states that "Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office." On this contention, the undersigned
reiterates the ruling of the Commission that the 3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon extended by former President Arroyo to herein
Respondent. This ruling is consistent with the traditional and customary usage of preambular paragraphs.
In the case of Echegaray v. Secretary of Justice, the Supreme Court ruled on the legal effect of preambular
paragraphs or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or
purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and
unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to
seek a public office again, the former ought to have explicitly stated the same in the text of the pardon
itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition to
the pardon extended to former President Estrada.42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s decision
torun for President in the May 2010 elections against, among others, the candidate of the political party
of former President Arroyo, after the latter’s receipt and acceptance of the pardon speaks volume of her

747
intention to restore him to his rights to suffrage and to hold public office.

Where the scope and import of the executive clemency extended by the President is in issue, the Court
must turn to the only evidence available to it, and that is the pardon itself. From a detailed review ofthe
four corners of said document, nothing therein gives an iota of intimation that the third Whereas Clause
is actually a limitation, proviso, stipulation or condition on the grant of the pardon, such that the breach
of the mentioned commitment not to seek public office will result ina revocation or cancellation of said
pardon. To the Court, what it is simply is a statement of fact or the prevailing situation at the time the
executive clemency was granted. It was not used as a condition to the efficacy orto delimit the scope of
the pardon.

Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the reasons to
grant the pardon, the pardon itself does not provide for the attendant consequence of the breach thereof.
This Court will be hard put to discern the resultant effect of an eventual infringement. Just like it will be
hard put to determine which civil or political rights were restored if the Court were to take the road
suggested by Risos-Vidal that the statement "[h]e is hereby restored to his civil and political rights"
excludes the restoration of former President Estrada’s rights to suffrage and to hold public office. The
aforequoted text ofthe executive clemency granted does not provide the Court with any guide asto how
and where to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon is
contingent on the condition that former President Estrada will not seek janother elective public office,
but it actually concerns the coverage of the pardon – whether the pardon granted to former President
Estrada was so expansive as to have restored all his political rights, inclusive of the rights of suffrage and
to hold public office. Justice Leonen is of the view that the pardon in question is not absolute nor plenary
in scope despite the statement that former President Estrada is "hereby restored to his civil and political
rights," that is, the foregoing statement restored to former President Estrada all his civil and political rights
except the rights denied to him by the unremitted penalty of perpetual absolute disqualification made up
of, among others, the rights of suffrage and to hold public office. He adds that had the President chosen
to be so expansive as to include the rights of suffrage and to hold public office, she should have been more
clear on her intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the Court,
iscrystal clear – the pardon granted to former President Estrada was absolute, meaning, it was not only
unconditional, it was unrestricted in scope, complete and plenary in character, as the term "political
rights"adverted to has a settled meaning in law and jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word "full" can be
construed as excluding the restoration of the rights of suffrage and to hold public office. There appears to

748
be no distinction as to the coverage of the term "full political rights" and the term "political rights" used
alone without any qualification. How to ascribe to the latter term the meaning that it is "partial" and not
"full" defies one’s understanding. More so, it will be extremely difficult to identify which of the political
rights are restored by the pardon, when the text of the latter is silent on this matter. Exceptions to the
grant of pardon cannot be presumed from the absence of the qualifying word "full" when the pardon
restored the "political rights" of former President Estrada without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President
Estrada was absolute in the absence of a clear, unequivocal and concrete factual basis upon which to
anchor or support the Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close scrutiny even
under the provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is confined
only to instances of grave abuse of discretion amounting to patentand substantial denial of due process,
because the COMELEC is presumed to be most competent in matters falling within its domain.43

As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to passion,
prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts
to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law.
For an act to be condemned as having been done with grave abuse of discretion, such an abuse must be
patent and gross.44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to prove
that the assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or capricious exercise of
power that amounts to an evasion orrefusal to perform a positive duty enjoined by law" or were so
"patent and gross" as to constitute grave abuse of discretion.

749
On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss Lim's
petition-in-intervention, which substantially presented the same arguments as Risos-Vidal's petition.

WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The Resolution dated
April 1, 2013 of the Commission on Elections, Second Division, and the Resolution dated April 23, 2013 of
the Commission on Elections, En bane, both in SPA No. 13-211 (DC), are AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

G.R. No. 187298 July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, and SPO1 SATTAL
H. JADJULI, Petitioners,

vs.

GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN, COL. EUGENIO
CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G. LATAG, in their capacity as officers
of the Phil. Marines and Phil. National Police, respectively, Respondents.

DECISION

SERENO, J.:

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

750
On 21 January 2009, a task force was created by the ICRC and the Philippine National Police (PNP), which
then organized a parallel local group known as the Local Crisis Committee.3 The local group, later renamed
Sulu Crisis Management Committee, convened under the leadership of respondent Abdusakur Mahail
Tan, the Provincial Governor of Sulu. Its armed forces component was headed by respondents General
Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was headed by respondent
Police Superintendent Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous
Region of Muslim Mindanao (ARMM).4

Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians coming from
different municipalities, who were redeployed to surrounding areas of Patikul.5 The organization of the
CEF was embodied in a "Memorandum of Understanding"6 entered into

between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed
Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police, represented by
P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the extraordinary situation in Sulu,
and the willingness of civilian supporters of the municipal mayors to offer their services in order that "the
early and safe rescue of the hostages may be achieved."7

This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities of each
of the party signatories, as follows:

Responsibilities of the Provincial Government:

1) The Provincial Government shall source the funds and logistics needed for the activation of the CEF;

2) The Provincial Government shall identify the Local Government Units which shall participate in the
operations and to propose them for the approval of the parties to this agreement;

3) The Provincial Government shall ensure that there will be no unilateral action(s) by the CEF without the
knowledge and approval by both parties.

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

1) The AFP/PNP shall remain the authority as prescribed by law in military operations and law

751
enforcement;

2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their assigned
task(s);

3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of operation(s);

4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the course of
operation(s)/movements of the CEF.8

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government,
announced to the media that government troops had cornered some one hundred and twenty (120) Abu
Sayyaf members along with the three (3) hostages.9 However, the ASG made

contact with the authorities and demanded that the military pull its troops back from the jungle area.10
The government troops yielded and went back to their barracks; the Philippine Marines withdrew to their
camp, while police and civilian forces pulled back from the terrorists’ stronghold by ten (10) to fifteen (15)
kilometers. Threatening that one of the hostages will be beheaded, the ASG further demanded the
evacuation of the military camps and bases in the different barangays in Jolo.11 The authorities were
given no later than 2:00 o’clock in the afternoon of 31 March 2009 to comply.12

On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring
a state of emergency in the province of Sulu.13 It cited the kidnapping incident as a ground for the said
declaration, describing it as a terrorist act pursuant to the Human Security

Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which
bestows on the Provincial Governor the power to carry out emergency measures during man-made and
natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to
suppress disorder and lawless violence.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints and
chokepoints, conduct general search and seizures including arrests, and other actions necessary to ensure
public safety. The pertinent portion of the proclamation states:

752
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN,
GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE
OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES
OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as may be issued by proper
authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their
supporters; and

4. To conduct such other actions or police operations as may be necessary to ensure public safety.

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT.
Julasirim Kasim.15 Upon arriving at the police station, he was booked, and interviewed about his
relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that he
was indeed related to the three, he was detained. After a few hours, former Punong Barangay Juljahan
Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula,
Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were also arrested.16 The
affidavit17 of the apprehending officer alleged that they were suspected ASG supporters and were being
arrested under Proclamation 1-09. The following day, 2 April 2009, the hostage Mary Jane Lacaba was
released by the ASG.

On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the "Guidelines for
the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of Emergency in the Province
of Sulu."18 These Guidelines suspended all Permits to Carry

Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to seek

753
exemption from the gun ban only by applying to the Office of the Governor and obtaining the appropriate
identification cards. The said guidelines also allowed general searches and seizures in designated
checkpoints and chokepoints.

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

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

In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of courts
when they filed the instant petition directly in the court of last resort, even if both the Court of Appeals
(CA) and the Regional Trial Courts (RTC) possessed concurrent jurisdiction with the

Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan.
Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido
Latag did not file their respective Comments.1âwphi1

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

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

754
We grant the petition.

I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts

We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which allegedly prevents
judicial review by this Court in the present case, citing for this specific purpose, Montes v. Court of Appeals
and Purok Bagong Silang Association, Inc. v. Yuipco.24 Simply put, the

doctrine provides that where the issuance of an extraordinary writ is also within the competence of the
CA or the RTC, it is in either of these courts and not in the Supreme Court, that the specific action for the
issuance of such writ must be sought unless special and important laws are clearly and specifically set
forth in the petition. The reason for this is that this Court is a court of last resort and must so remain if it
is to perform the functions assigned to it by the Constitution and immemorial tradition. It cannot be
burdened with deciding cases in the first instance.25

The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated:

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

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

In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance involved in
cases that concern restrictive custody, because judicial review in these cases serves as "a manifestation
of the crucial defense of civilians ‘in police power’ cases due to the diminution of their basic liberties under
the guise of a state of emergency."30 Otherwise, the importance of the high tribunal as the court of last

755
resort would be put to naught, considering the nature of "emergency" cases, wherein the proclamations
and issuances are inherently short-lived. In finally disposing of the claim that the issue had become moot
and academic, the Court also cited transcendental public importance as an exception, stating:

Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga (restrictive
custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito
(a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,

(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang kapulisan
tungkol dito.

The moot and academic principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount public interest
is involved; third, when [the] constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

…There is no question that the issues being raised affect the public interest, involving as they do the
people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the

Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has
the symbolic function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees. And lastly, respondents
contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

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

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

756
II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic

i. One executive, one commander-in-chief

As early as Villena v. Secretary of Interior,32 it has already been established that there is one repository
of executive powers, and that is the President of the Republic. This means that when Section 1, Article VII
of the Constitution speaks of executive power, it is granted to the President and no one else.33 As
emphasized by Justice Jose P. Laurel, in his ponencia in Villena:

With reference to the Executive Department of the government, there is one purpose which is crystal-
clear and is readily visible without the projection of judicial searchlight, and that is the establishment of a
single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive
Department, begins with the enunciation of the principle that "The executive power shall be vested in a
President of the Philippines." This means that the President of the Philippines is the Executive of the
Government of the Philippines, and no other.34

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

ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by one
president

Springing from the well-entrenched constitutional precept of One President is the notion that there are
certain acts which, by their very nature, may only be performed by the president as the Head of the State.
One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which the "calling-out"
powers constitutes a portion. The President’s Emergency Powers, on the other hand, is balanced only by
the legislative act of Congress, as embodied in the second paragraph of Section 23, Article 6 of the
Constitution:

Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease upon the next adjournment thereof.35

757
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

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

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

Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates that
civilian authority is, at all times, supreme over the military, making the civilian president the nation’s
supreme military leader. The net effect of Article II, Section 3, when read with Article VII,

Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces.
The Constitution does not require that the President must be possessed of military training and talents,
but as Commander-in-Chief, he has the power to direct military operations and to determine military
strategy. Normally, he would be expected to delegate the actual command of the armed forces to military
experts; but the ultimate power is his.40 As Commander-in-Chief, he is authorized to direct the
movements of the naval and military forces placed by law at his command, and to employ them in the
manner he may deem most effectual.41

In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to rule that the calling-
out powers belong solely to the President as commander-in-chief:

758
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion,
he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of
the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule
the President’s wisdom or substitute its own. However, this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the
petitioner to show that the President’s decision is totally bereft of factual basis.

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

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

That the power to call upon the armed forces is discretionary on the president is clear from the
deliberation of the Constitutional Commission:

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

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

xxx xxx xxx

759
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial
review.

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

x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to
do so in order to prevent or suppress lawless violence, invasion or rebellion.45 (Emphasis Supplied)

In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these powers as exclusive
to the President, precisely because they are of exceptional import:

These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain
presidential powers which arise out of exceptional circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over
those exercised by co-equal branches of government. The declaration of martial law, the suspension of
the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that demands the exclusive exercise
by the President of the constitutionally vested power. The list is by no means exclusive, but there must be
a showing that the executive power in question is of similar gravitas and exceptional import.47

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

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

760
A local chief executive, such as the provincial governor, exercises operational supervision over the
police,50 and may exercise control only in day-to-day operations, viz:

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

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

xxx xxx xxx

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

Mr. Natividad: Yes, Madam President.

xxx xxx xxx

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

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

761
Furthermore according to the framers, it is still the President who is authorized to exercise supervision
and control over the police, through the National Police Commission:

Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all the
armed forces.

Mr. Natividad: Yes, Madam President.

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

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

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

Mr. Natividad: He is the President.

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

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

Mr. Rodrigo: There are two other powers of the President. The

President has control over ministries, bureaus and offices, and supervision over local governments. Under
which does the police fall, under control or under supervision?

Mr. Natividad: Both, Madam President.

Mr. Rodrigo: Control and supervision.

762
Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President.52

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

iii. The provincial governor does not possess the same calling-out powers as the President

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

Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo,
which dealt squarely with the issue of the declaration of a state of emergency, does it limit the said
authority to the President alone. Respondents contend that the ruling in David expressly limits the
authority to declare a national emergency, a condition which covers the entire country, and does not
include emergency situations in local government units.54 This claim is belied by the clear intent of the
framers that in all situations involving threats to security, such as lawless violence, invasion or rebellion,
even in localized areas, it is still the President who possesses the sole authority to exercise calling-out
powers. As reflected in the Journal of the Constitutional Commission:

Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of "invasion
or rebellion." Mr. Sumulong stated that the committee could not accept the amendment because under
the first section of Section 15, the President may call out and make use of the armed forces to prevent or
suppress not only lawless violence but even invasion or rebellion without declaring martial law. He
observed that by deleting "invasion or rebellion" and substituting PUBLIC DISORDER, the President would
have to declare martial law before he can make use of the armed forces to prevent or suppress lawless
invasion or rebellion.

763
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where there is
some lawless violence in a small portion of the country or public disorder in another at which times, the
armed forces can be called to prevent or suppress these incidents. He noted that the Commander-in-Chief
can do so in a minor degree but he can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the following sentence which provides
for "invasion or rebellion." He maintained that the proposed amendment does not mean that under such
circumstances, the President cannot call on the armed forces to prevent or suppress the same.55
(Emphasis supplied)

III. Section 465 of the Local

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

Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act, and used
this incident to justify the exercise of the powers enumerated under Proclamation 1-09.56 He invokes
Section 465, in relation to Section 16, of the Local Government Code, which purportedly allows the
governor to carry out emergency measures and call upon the appropriate national law enforcement
agencies for assistance. But a closer look at the said proclamation shows that there is no provision in the
Local Government Code nor in any law on which the broad and unwarranted powers granted to the
Governor may be based.

Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters,"57 as being violative of the constitutional proscription on general search
warrants and general seizures. Petitioners rightly assert that this alone would be sufficient to render the
proclamation void, as general searches and seizures are proscribed, for being violative of the rights
enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.58

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

764
We find, and so hold, that there is nothing in the Local Government Code which justifies the acts
sanctioned under the said Proclamation. Not even Section 465 of the said Code, in relation to Section 16,
which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.

xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the
province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

(1) Exercise general supervision and control over all programs, projects, services, and activities of the
provincial government, and in this connection, shall:

xxx xxx xxx

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

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

xxx xxx xxx

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

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its

765
efficient and effective governance, and those which are essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and support the development of appropriate and self-
reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and
social justice, promote full employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants. (Emphases supplied)

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

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First, the
Armed Forces of the Philippines does not fall under the category of a "national law enforcement agency,"
to which the National Police Commission (NAPOLCOM) and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend the
Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of the national
territory.60

Second, there was no evidence or even an allegation on record that the local police forces were
inadequate to cope with the situation or apprehend the violators. If they were inadequate, the recourse
of the provincial governor was to ask the assistance of the Secretary of Interior and Local Government, or
such other authorized officials, for the assistance of national law enforcement agencies.

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

The intent behind the powers granted to local government units is fiscal, economic, and administrative in
nature.1âwphi1 The Code is concerned only with powers that would make the delivery of basic services
more effective to the constituents,61 and should not be unduly stretched to confer calling-out powers on
local executives.

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a step

766
towards the autonomy of local government units (LGUs), and is actually an experiment whose success
heavily relies on the power of taxation of the LGUs. The underpinnings of the Code can be found in Section
5, Article II of the 1973 Constitution, which allowed LGUs to create their own sources of revenue.62 During
the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that
"Decentralization is an administrative concept and the process of shifting and delegating power from a
central point to subordinate levels to promote independence, responsibility, and quicker decision-making.
… (I)t does not involve any transfer of final authority from the national to field levels, nor diminution of
central office powers and responsibilities. Certain government agencies, including the police force, are
exempted from the decentralization process because their functions are not inherent in local government
units."63

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private citizen armies is
proscribed. Section 24 of Article XVIII of the Constitution mandates that:

Private armies and other armed groups not recognized by duly constituted authority shall be dismantled.
All paramilitary forces including Civilian Home Defense Forces (CHDF) not consistent with the citizen
armed force established in this Constitution, shall be dissolved or, where appropriate, converted into the
regular force.

Additionally, Section 21of Article XI states that, "The preservation of peace and order within the regions
shall be the responsibility of the local police agencies which shall be organized, maintained, supervised,
and utilized in accordance with applicable laws. The defense and security of the regions shall be the
responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the
organization of private armed groups similar to the CEF convened by the respondent Governor. The
framers of the Constitution were themselves wary of armed citizens’ groups, as shown in the following
proceedings:

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating under
the cloak, under the mantle of legality is creating a lot of problems precisely by being able to operate as
an independent private army for many regional warlords. And at the same time, this I think has been the
thrust, the intent of many of the discussions and objections to the paramilitary units and the armed
groups.

767
MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other armed
torces not recognized by constituted authority which shall be dismantled and dissolved. In my trips to the
provinces, I heard of many abuses committed by the CHDF (Civilian Home Defense Forces), specially in
Escalante, Negros Occidental. But I do not know whether a particular CHDF is approved or authorized by
competent authority. If it is not authorized, then the CHDF will have to be dismantled. If some CHDFs, say
in other provinces, are authorized by constituted authority, by the Armed Forces of the Philippines,
through the Chief of Staff or the Minister of National Defense, if they are recognized and authorized, then
they will not be dismantled. But I cannot give a categorical answer to any specific CHDF unit, only the
principle that if they are armed forces which are not authorized, then they should be dismantled. 64
(Emphasis supplied)

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

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

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

G.R. No. 190259 June 7, 2011

DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-GENERALE Petitioners,

vs.

HON. RONALDO PUNO, in his capacity as Secretary of the Department of Interior and Local Government
and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and on behalf of the
President of the Philippines, ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units operating in
the Autonomous Region in Muslim Mindanao (ARMM), and PHILIPPINE NATIONAL POLICE, or any of their
units operating in ARMM, Respondents.

DECISION

768
ABAD, J.:

On November 24, 2009, the day after the gruesome massacre of 57 men and women, including some
news reporters, then President Gloria Macapagal-Arroyo issued Proclamation 1946,1 placing "the
Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency." She
directed the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) "to undertake
such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of
lawless violence" in the named places.

Three days later or on November 27, President Arroyo also issued Administrative Order 273 (AO 273)2
"transferring" supervision of the Autonomous Region of Muslim Mindanao (ARMM) from the Office of the
President to the Department of Interior and Local Government (DILG). But, due to issues raised over the
terminology used in AO 273, the President issued Administrative Order 273-A (AO 273-A) amending the
former, by "delegating" instead of "transferring" supervision of the ARMM to the DILG.3

Claiming that the President’s issuances encroached on the ARMM’s autonomy, petitioners Datu Zaldy Uy
Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials,4 filed this petition for
prohibition under Rule 65. They alleged that the proclamation and the orders empowered the DILG
Secretary to take over ARMM’s operations and seize the regional government’s powers, in violation of
the principle of local autonomy under Republic Act 9054 (also known as the Expanded ARMM Act) and
the Constitution. The President gave the DILG Secretary the power to exercise, not merely administrative
supervision, but control over the ARMM since the latter could suspend ARMM officials and replace them.5

Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of
emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where no critical violent
incidents occurred. The deployment of troops and the taking over of the ARMM constitutes an invalid
exercise of the President’s emergency powers.6 Petitioners asked that Proclamation 1946 as well as AOs
273 and 273-A be declared unconstitutional and that respondents DILG Secretary, the AFP, and the PNP
be enjoined from implementing them.

In its comment for the respondents,7 the Office of the Solicitor General (OSG) insisted that the President
issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to restore peace and order in
subject places.8 She issued the proclamation pursuant to her "calling out" power9 as Commander-in-Chief
under the first sentence of Section 18, Article VII of the Constitution. The determination of the need to
exercise this power rests solely on her wisdom.10 She must use her judgment based on intelligence
reports and such best information as are available to her to call out the armed forces to suppress and
prevent lawless violence wherever and whenever these reared their ugly heads.

769
On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory powers
over the ARMM to the DILG Secretary who was her alter ego any way. These orders did not authorize a
take over of the ARMM. They did not give him blanket authority to suspend or replace ARMM officials.11
The delegation was necessary to facilitate the investigation of the mass killings.12 Further, the assailed
proclamation and administrative orders did not provide for the exercise of emergency powers.13

Although normalcy has in the meantime returned to the places subject of this petition, it might be relevant
to rule on the issues raised in this petition since some acts done pursuant to Proclamation 1946 and AOs
273 and 273-A could impact on the administrative and criminal cases that the government subsequently
filed against those believed affected by such proclamation and orders.

The Issues Presented

The issues presented in this case are:

1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy
under Section 16, Article X of the Constitution, and Section 1, Article V of the Expanded ARMM Organic
Act;

2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP
and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat,
and Cotabato City; and

3. Whether or not the President had factual bases for her actions.

The Rulings of the Court

We dismiss the petition.

One. The claim of petitioners that the subject proclamation and administrative orders violate the principle
of local autonomy is anchored on the allegation that, through them, the President authorized the DILG
Secretary to take over the operations of the ARMM and assume direct governmental powers over the
region.

770
But, in the first place, the DILG Secretary did not take over control of the powers of the ARMM. After law
enforcement agents took respondent Governor of ARMM into custody for alleged complicity in the
Maguindanao massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong, assumed the vacated
post on December 10, 2009 pursuant to the rule on succession found in Article VII, Section 12,14 of RA
9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional Assembly,
petitioner Sahali-Generale, Acting ARMM Vice-Governor.15 In short, the DILG Secretary did not take over
the administration or operations of the ARMM.

Two. Petitioners contend that the President unlawfully exercised emergency powers when she ordered
the deployment of AFP and PNP personnel in the places mentioned in the proclamation.16 But such
deployment is not by itself an exercise of emergency powers as understood under Section 23 (2), Article
VI of the Constitution, which provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three places
mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise
extraordinary powers. The calling out of the armed forces to prevent or suppress lawless violence in such
places is a power that the Constitution directly vests in the President. She did not need a congressional
authority to exercise the same.

Three. The President’s call on the armed forces to prevent or suppress lawless violence springs from the
power vested in her under Section 18, Article VII of the Constitution, which provides.17

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. x x x

While it is true that the Court may inquire into the factual bases for the President’s exercise of the above
power,18 it would generally defer to her judgment on the matter. As the Court acknowledged in
Integrated Bar of the Philippines v. Hon. Zamora,19 it is clearly to the President that the Constitution
entrusts the determination of the need for calling out the armed forces to prevent and suppress lawless
violence. Unless it is shown that such determination was attended by grave abuse of discretion, the Court
will accord respect to the President’s judgment. Thus, the Court said:

771
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In
many instances, the evidence upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call
out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to
have any effect at all. x x x.20

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of
Maguindanao, Sultan Kudarat and Cotabato City, as well as the President’s exercise of the "calling out"
power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed
under a state of emergency, it follows that the take over of the entire ARMM by the DILG Secretary had
no basis too.21

But, apart from the fact that there was no such take over to begin with, the OSG also clearly explained the
factual bases for the President’s decision to call out the armed forces, as follows:

The Ampatuan and Mangudadatu clans are prominent families engaged in the political control of
Maguindanao. It is also a known fact that both families have an arsenal of armed followers who hold
elective positions in various parts of the ARMM and the rest of Mindanao.

Considering the fact that the principal victims of the brutal bloodshed are members of the Mangudadatu
family and the main perpetrators of the brutal killings are members and followers of the Ampatuan family,
both the military and police had to prepare for and prevent reported retaliatory actions from the
Mangudadatu clan and additional offensive measures from the Ampatuan clan.

xxxx

772
The Ampatuan forces are estimated to be approximately two thousand four hundred (2,400) persons,
equipped with about two thousand (2,000) firearms, about four hundred (400) of which have been
accounted for. x x x

As for the Mangudadatus, they have an estimated one thousand eight hundred (1,800) personnel, with
about two hundred (200) firearms. x x x

Apart from their own personal forces, both clans have Special Civilian Auxiliary Army (SCAA) personnel
who support them: about five hundred (500) for the Ampatuans and three hundred (300) for the
Mangudadatus.

What could be worse than the armed clash of two warring clans and their armed supporters, especially in
light of intelligence reports on the potential involvement of rebel armed groups (RAGs).

One RAG was reported to have planned an attack on the forces of Datu Andal Ampatuan, Sr. to show
support and sympathy for the victims. The said attack shall worsen the age-old territorial dispute between
the said RAG and the Ampatuan family.

xxxx

On the other hand, RAG faction which is based in Sultan Kudarat was reported to have received three
million pesos (P3,000,000.00) from Datu Andal Ampatuan, Sr. for the procurement of ammunition. The
said faction is a force to reckon with because the group is well capable of launching a series of violent
activities to divert the attention of the people and the authorities away from the multiple murder case. x
xx

In addition, two other factions of a RAG are likely to support the Mangudadatu family. The Cotabato-
based faction has the strength of about five hundred (500) persons and three hundred seventy-two (372)
firearms while the Sultan Kudarat-based faction has the strength of about four hundred (400) persons and
three hundred (300) firearms and was reported to be moving towards Maguindanao to support the
Mangudadatu clan in its armed fight against the Ampatuans.22

In other words, the imminence of violence and anarchy at the time the President issued Proclamation
1946 was too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places

773
mentioned. Progress reports also indicated that there was movement in these places of both high-
powered firearms and armed men sympathetic to the two clans.23 Thus, to pacify the people’s fears and
stabilize the situation, the President had to take preventive action. She called out the armed forces to
control the proliferation of loose firearms and dismantle the armed groups that continuously threatened
the peace and security in the affected places.

Notably, the present administration of President Benigno Aquino III has not withdrawn the declaration of
a state of emergency under Proclamation 1946. It has been reported24 that the declaration would not be
lifted soon because there is still a need to disband private armies and confiscate loose firearms.
Apparently, the presence of troops in those places is still necessary to ease fear and tension among the
citizenry and prevent and suppress any violence that may still erupt, despite the passage of more than a
year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject
places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly
no factual bases, the Court must respect the President’s actions.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

ROBERTO A. ABAD

Associate Justice

G.R. No. 190293 March 20, 2012

PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELES, Petitioners,

vs.

GLORIA MACAPAGAL-ARROYO, as Commander-in-Chief and President of the Republic of the Philippines,

EDUARDO ERMITA, Executive Secretary, ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units,
PHILIPPINE NATIONAL POLICE (PNP), or any of their units, JOHN DOES and JANE DOES acting under their
direction and control, Respondents.

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

774
G.R. No. 190294

DIDAGEN P. DILANGALEN, Petitioner,

vs.

EDUARDO R. ERMITA in his capacity as Executive Secretary, NORBERTO GONZALES in his capacity as
Secretary of National Defense, RONALDO PUNO in his capacity as Secretary of Interior and Local
Government, Respondents.

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

G.R. No. 190301

NATIONAL UNION OF PEOPLES' LAWYERS (NUPL) SECRETARY GENERAL NERI JAVIER COLMENARES, BAYAN
MUNA REPRESENTATIVE SATUR C. OCAMPO, GABRIELA WOMEN'S PARTY REPRESENTATIVE LIZA L. MAZA,
ATTY. JULIUS GARCIA MATIBAG, ATTY. EPHRAIM B. CORTEZ, ATTY. JOBERT ILARDE PAHILGA, ATTY.
VOLTAIRE B. AFRICA, BAGONG ALYANSANG MAKABAYAN (BAYAN) SECRETARY GENERAL RENATO M.
REYES, JR. and ANTHONY IAN CRUZ, Petitioners,

vs.

PRESIDENT GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R. ERMITA, ARMED FORCES

OF THE PHILIPPINES CHIEF OF STAFF GENERAL VICTOR S. IBRADO, PHILIPPINE NATIONAL POLICE DIRECTOR
GENERAL JESUS A. VERZOSA, DEPARTMENT OF JUSTICE SECRETARY AGNES VST DEVANADERA, ARMED
FORCES OF THE PHILIPPINES EASTERN MINDANAO COMMAND CHIEF LIEUTENANT GENERAL RAYMUNDO
B. FERRER, Respondents.

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

G.R. No. 190302

JOSEPH NELSON Q. LOYOLA, Petitioner,

vs.

HER EXCELLENCY PRESIDENT GLORIA MACAPAGAL-ARROYO, ARMED FORCES CHIEF OF STAFF GENERAL
VICTOR IBRADO, PHILIPPINE NATIONAL POLICE (PNP), DIRECTOR GENERAL JESUS VERZOSA, EXECUTIVE
SECRETARY EDUARDO ERMITA, Respondents.

775
x-----------------------x

G.R. No. 190307

JOVITO R. SALONGA, RAUL C. PANGALANGAN, H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, EMILIO
CAPULONG, FLORIN T. HILBAY, ROMEL R. BAGARES, DEXTER DONNE B. DIZON, ALLAN JONES F.
LARDIZABAL and GILBERT T. ANDRES, suing as taxpayers and as CONCERNED Filipino citizens, Petitioners,

vs.

GLORIA MACAPAGAL-ARROYO, in his (sic) capacity as President of the Republic of the Philippines, HON.
EDUARDO ERMITA, JR., in his capacity as Executive Secretary, and HON. ROLANDO ANDAYA in his capacity
as Secretary of the Department of Budget and Management, GENERAL VICTOR IBRADO, in his capacity as
Armed Forces of the Philippines Chief of Staff, DIRECTOR JESUS VERZOSA, in his capacity as Chief of the
Philippine National Police, Respondents.

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

G.R. No. 190356

BAILENG S. MANTAWIL, DENGCO SABAN, Engr. OCTOBER CHIO, AKBAYAN PARTY LIST REPRESENTATIVES
WALDEN F. BELLO and ANA THERESIA HONTIVEROS-BARAQUEL, LORETTA ANN P. ROSALES, MARVIC
M.V.F. LEONEN, THEODORE O. TE and IBARRA M. GUTIERREZ III, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
and THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 190380

CHRISTIAN MONSOD and CARLOS P. MEDINA, JR., Petitioners,

776
vs.

EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

DECISION

ABAD, J.:

These cases concern the constitutionality of a presidential proclamation of martial law and suspension of
the privilege of habeas corpus in 2009 in a province in Mindanao which were withdrawn after just eight
days.

The Facts and the Case

The essential background facts are not in dispute. On November 23, 2009 heavily armed men, believed
led by the ruling Ampatuan family, gunned down and buried under shoveled dirt 57 innocent civilians on
a highway in Maguindanao. In response to this carnage, on November 24 President Arroyo issued
Presidential Proclamation 1946, declaring a state of emergency in Maguindanao, Sultan Kudarat, and
Cotabato City to prevent and suppress similar lawless violence in Central Mindanao.

Believing that she needed greater authority to put order in Maguindanao and secure it from large groups
of persons that have taken up arms against the constituted authorities in the province, on December 4,
2009 President Arroyo issued Presidential Proclamation 1959 declaring martial law and suspending the
privilege of the writ of habeas corpus in that province except for identified areas of the Moro Islamic
Liberation Front.

Two days later or on December 6, 2009 President Arroyo submitted her report to Congress in accordance
with Section 18, Article VII of the 1987 Constitution which required her, within 48 hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, to submit to
that body a report in person or in writing of her action.

In her report, President Arroyo said that she acted based on her finding that lawless men have taken up
arms in Maguindanao and risen against the government. The President described the scope of the
uprising, the nature, quantity, and quality of the rebels’ weaponry, the movement of their heavily armed
units in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall,
Datu Unsay Municipal Hall, and 14 other municipal halls, and the use of armored vehicles, tanks, and

777
patrol cars with unauthorized "PNP/Police" markings.

On December 9, 2009 Congress, in joint session, convened pursuant to Section 18, Article VII of the 1987
Constitution to review the validity of the President’s action. But, two days later or on December 12 before
Congress could act, the President issued Presidential Proclamation 1963, lifting martial law and restoring
the privilege of the writ of habeas corpus in Maguindanao.

Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293, 190294, 190301,190302,
190307, 190356, and 190380 brought the present actions to challenge the constitutionality of President
Arroyo’s Proclamation 1959 affecting Maguindanao. But, given the prompt lifting of that proclamation
before Congress could review it and before any serious question affecting the rights and liberties of
Maguindanao’s inhabitants could arise, the Court deems any review of its constitutionality the equivalent
of beating a dead horse.

Prudence and respect for the co-equal departments of the government dictate that the Court should be
cautious in entertaining actions that assail the constitutionality of the acts of the Executive or the
Legislative department. The issue of constitutionality, said the Court in Biraogo v. Philippine Truth
Commission of 2010,1 must be the very issue of the case, that the resolution of such issue is unavoidable.

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the
writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and
validate or invalidate the same. The pertinent provisions of Section 18, Article VII of the 1987 Constitution
state:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all
its Members in regular or special session, may revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.

778
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without any need of a call.

xxxx

Although the above vests in the President the power to proclaim martial law or suspend the privilege of
the writ of habeas corpus, he shares such power with the Congress. Thus:

1. The President’s proclamation or suspension is temporary, good for only 60 days;

2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to
Congress;

3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or
suspension for the purpose of reviewing its validity; and

4. The Congress, voting jointly, may revoke or affirm the President’s proclamation or suspension, allow
their limited effectivity to lapse, or extend the same if Congress deems warranted.

It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising
the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the
power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation
or the suspension, only the Congress can maintain the same based on its own evaluation of the situation
on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the
Court must allow Congress to exercise its own review powers, which is automatic rather than initiated.
Only when Congress defaults in its express duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation
of martial law or suspension of the writ of habeas corpus is first a political question in the hands of
Congress before it becomes a justiciable one in the hands of the Court.

779
Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in
fact convened, could act on the same. Consequently, the petitions in these cases have become moot and
the Court has nothing to review. The lifting of martial law and restoration of the privilege of the writ of
habeas corpus in Maguindanao was a supervening event that obliterated any justiciable controversy.2

Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of
the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military
did not take over the operation and control of local government units in Maguindanao. The President did
not issue any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No
indiscriminate mass arrest had been reported. Those who were arrested during the period were either
released or promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court
respecting arrests made in those eight days. The point is that the President intended by her action to
address an uprising in a relatively small and sparsely populated province. In her judgment, the rebellion
was localized and swiftly disintegrated in the face of a determined and amply armed government
presence.

In Lansang v. Garcia,3 the Court received evidence in executive session to determine if President Marcos’
suspension of the privilege of the writ of habeas corpus in 1971 had sufficient factual basis. In Aquino, Jr.
v. Enrile,4 while the Court took judicial notice of the factual bases for President Marcos’ proclamation of
martial law in 1972, it still held hearings on the petitions for habeas corpus to determine the
constitutionality of the arrest and detention of the petitioners. Here, however, the Court has not bothered
to examine the evidence upon which President Arroyo acted in issuing Proclamation 1959, precisely
because it felt no need to, the proclamation having been withdrawn within a few days of its issuance.

Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional Trial Court (RTC)
of Quezon City that no probable cause exist that the accused before it committed rebellion in
Maguindanao since the prosecution failed to establish the elements of the crime. But the Court cannot
use such finding as basis for striking down the President’s proclamation and suspension. For, firstly, the
Court did not delegate and could not delegate to the RTC of Quezon City its power to determine the factual
basis for the presidential proclamation and suspension. Secondly, there is no showing that the RTC of
Quezon City passed upon the same evidence that the President, as Commander-in-Chief of the Armed
Forces, had in her possession when she issued the proclamation and suspension.

The Court does not resolve purely academic questions to satisfy scholarly interest, however intellectually
challenging these are.5 This is especially true, said the Court in Philippine Association of Colleges and
Universities v. Secretary of Education,6 where the issues "reach constitutional dimensions, for then there
comes into play regard for the court’s duty to avoid decision of constitutional issues unless avoidance
becomes evasion." The Court’s duty is to steer clear of declaring unconstitutional the acts of the Executive
or the Legislative department, given the assumption that it carefully studied those acts and found them
consistent with the fundamental law before taking them. "To doubt is to sustain."7

780
Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30 days from the filing
of an appropriate proceeding to review the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus. Thus –

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing. (Emphasis supplied)

More than two years have passed since petitioners filed the present actions to annul Proclamation
1959.1âwphi1 When the Court did not decide it then, it actually opted for a default as was its duty, the
question having become moot and academic.

Justice Carpio of course points out that should the Court regard the powers of the President and Congress
respecting the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus
as sequential or joint, it would be impossible for the Court to exercise its power of review within the 30
days given it.

But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-
empting congressional action. Section 18, Article VII, requires the President to report his actions to
Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the
Congress is required to convene without need of a call within 24 hours following the President’s
proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress.
Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate
to review the factual basis of the proclamation or suspension within 30 days of its issuance.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or
suspension within the short time expected of it, then the Court can step in, hear the petitions challenging
the President’s action, and ascertain if it has a factual basis. If the Court finds none, then it can annul the
proclamation or the suspension. But what if the 30 days given it by the Constitution proves inadequate?
Justice Carpio himself offers the answer in his dissent: that 30-day period does not operate to divest this
Court of its jurisdiction over the case. The settled rule is that jurisdiction once acquired is not lost until the
case has been terminated.

The problem in this case is that the President aborted the proclamation of martial law and the suspension
of the privilege of the writ of habeas corpus in Maguindanao in just eight days. In a real sense, the

781
proclamation and the suspension never took off. The Congress itself adjourned without touching the
matter, it having become moot and academic.

Of course, the Court has in exceptional cases passed upon issues that ordinarily would have been regarded
as moot. But the present cases do not present sufficient basis for the exercise of the power of judicial
review. The proclamation of martial law and the suspension of the privilege of the writ of habeas corpus
in this case, unlike similar Presidential acts in the late 60s and early 70s, appear more like saber-rattling
than an actual deployment and arbitrary use of political power.

WHEREFORE, the Court DISMISSES the consolidated petitions on the ground that the same have become
moot and academic.

SO ORDERED.

ROBERTO A. ABAD

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO

Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice LUCAS P. BERSAMIN

Associate Justice

782
MARIANO C. DEL CASTILLO

Associate Justice MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice BIENVENIDO L. REYES

Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

RENATO C. CORONA

Chief Justice

Footnotes

1 G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 147-148.

2 See Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 319.

3 149 Phil. 547 (1971).

783
4 158-A Phil. 1 (1974).

5 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426 (1998).

6 97 Phil. 806, 811 (1955), citing Rice v. Sioux City, U.S. Sup. Ct. Adv. Rep., May 23, 1955, Law Ed., Vol. 99,
p. 511.

7 Board of Optometry v. Colet, 328 Phil. 1187, 1207 (1996), citing Drilon v. Lim, G.R. No. 112497, August
4, 1994, 235 SCRA 135, 140.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

I dissent.

The Cases

These are consolidated petitions for the writs of certiorari and prohibition challenging the
constitutionality of Presidential Proclamation No. 1959, which declared a state of martial law and
suspended the privilege of the writ of habeas corpus in the Province of Maguindanao, except for identified
areas of the Moro Islamic Liberation Front.

The Antecedents

In the morning of 23 November 2009, fifty-seven (57) innocent civilians met their tragic and untimely
death in a gruesome massacre unequaled in recent history,1 considered to be the Philippines’ worst case

784
of election-related violence. Brutally killed were female family members of then Buluan Vice Mayor
Esmael "Toto" Mangudadatu (Mangudadatu), including his wife and sisters, and members of the press
who were part of a convoy on the way to Shariff Aguak in Maguindanao. Mangudadatu’s wife was bringing
with her Mangudadatu’s certificate of candidacy for Governor of Maguindanao for filing with the
Provincial Office of the Commission on Elections in Shariff Aguak. Five of the victims were not part of the
convoy but happened to be traveling on the same highway.2

In its Consolidated Comment dated 14 December 2009, the Office of the Solicitor General (OSG),
representing public respondents, narrated the harrowing events which unfolded on that fateful day of 23
November 2009, to wit:

xxxx

3. Vice Mayor Mangudadatu confirmed having received reports that his political rivals (Ampatuans) were
planning to kill him upon his filing of a certificate of candidacy (COC) for the gubernatorial seat in
Maguindanao. Believing that the presence of women and media personalities would deter any violent
assault, he asked his wife and female relatives to file his COC and invited several media reporters to cover
the event.

4. At around 10 a.m., the convoy stopped at a designated PNP checkpoint along the highway of Ampatuan,
Maguindanao manned by the Maguindanao 1508th Provincial Mobile Group, particularly, Eshmail
Canapia and Takpan Dilon. While at a stop, they were approached by about one hundred (100) armed
men. The armed men pointed their weapons at the members of the 1508th Provincial Mobile Group
manning the check point, and threatened them to refrain from interfering. The members of the convoy
were then ordered to alight from their vehicles and to lie face down on the ground, as the armed men
forcibly took their personal belongings. Subsequently, all members of the convoy were ordered to board
their vehicles. They were eventually brought by the armed men to the hills in Barangay Masalay,
Ampatuan, about 2.5 kilometers from the checkpoint.

5. At about the same time, Vice Mayor Mangudadatu received a call from his wife Genelyn who, in a
trembling voice, told him that a group of more or less 100 armed men stopped their convoy, and that
Datu Unsay Mayor Andal Ampatuan, Jr. was walking towards her, and was about to slap her face. After
those last words were uttered, the phone line went dead and her cellphone could not be contacted any
longer. Alarmed that his wife and relatives, as well as the media personalities were in grave danger, Vice
Mayor Mangudadatu immediately reported the incident to the Armed Forces of the Philippines.

6. In the afternoon of the same day, soldiers – aboard two army trucks led by Lt. Col. Rolando Nerona,
Head of the Philippine Army’s 64th Infantry Battalion – went to the town of Ampatuan to confirm the

785
report. At around 3 p.m., they passed by the checkpoint along the highway in Ampatuan manned by the
1508th Provincial Mobile Group and asked whether they were aware of the reported abduction. Members
of the 1508th Provincial Mobile Group denied having knowledge of what they have witnessed at around
10 in the morning purportedly out of fear of retaliation from the powerful Ampatuan clan. Nevertheless,
P/CI Sukarno Adil Dicay, the head of the Mobile Group, instructed P/INSP Diongon to accompany the
military on foot patrol as they conduct their operation relative to the reported abduction.

7. Upon reaching Barangay Masalay, Ampatuan, the soldiers on foot patrol found dead bodies, bloodied
and scattered on the ground and inside the four (4) vehicles used by the convoy. Three (3) newly covered
graves and a back hoe belonging to the Maguindanao Provincial Government parked nearby with its
engine still running were found at the site. When the graves were dug up by the soldiers, twenty four (24)
dead bodies were found in the first grave; six (6) dead bodies with three (3) vehicles, particularly a Toyota
Vios with the seal of the Tacurong City Government, a Tamaraw FX and an L300 owned by the media outfit
UNTV were found in the second grave; and five (5) more dead bodies were recovered from the third grave,
yielding 35 buried dead bodies and, together with other cadavers, resulted in a total of fifty seven (57)
fatalities.

8. x x x

9. Examination of the bodies revealed that most, if not all, of the female victims’ pants were found
unzipped, and their sexual organs mutilated and mangled. Five (5) of them were tested positive for traces
of semen, indicative of sexual abuse while some of the victims were shot in the genital area. The genitalia
of Genelyn Mangudadatu was lacerated four (4) times, and blown off by a gun fire, and her body
horrifyingly mutilated. Two of the women killed were pregnant, while another two were lawyers. Twenty-
nine (29) of the casualties were media personnel. Almost all gun shot injuries were on the heads of the
victims, rendering them unrecognizable albeit two (2) bodies remain unidentified. Those found in the
graves were coarsely lumped like trash, and some of the victims were found hogtied. All the dead bodies
bear marks of despicable torture, contempt and outrageous torment.3

A day after the carnage, on 24 November 2009, former President Gloria Macapagal-Arroyo (President
Arroyo) issued Proclamation No. 1946, declaring a state of emergency in the provinces of Maguindanao
and Sultan Kudarat, and in the City of Cotabato, "to prevent and suppress the occurrence of similar other
incidents of lawless violence in Central Mindanao." The full text of Proclamation No. 1946 reads:

DECLARING A STATE OF EMERGENCY IN CENTRAL MINDANAO

WHEREAS, on November 23, 2009, several persons, including women and members of media were killed
in a violent incident which took place in Central Mindanao;

786
WHEREAS, there is an urgent need to prevent and suppress the occurrence of similar other incidents of
lawless violence in Central Mindanao;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue
of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:

SECTION 1. The Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato are hereby placed
under a state of emergency for the purpose of preventing and suppressing lawless violence in the
aforesaid jurisdiction.

SECTION 2. The Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) are hereby
ordered to undertake such measures as may be allowed by the Constitution and by law to prevent and
suppress all incidents of lawless violence in the said jurisdiction.

SECTION 3. The state of emergency covering the Provinces of Maguindanao and Sultan Kudarat and the
City of Cotabato shall remain in force and effect until lifted or withdrawn by the President.4

On 4 December 2009, President Arroyo issued Proclamation No. 1959, declaring martial law and
suspending the privilege of the writ of habeas corpus (writ) in the Province of Maguindanao, except for
the identified areas of the Moro Islamic Liberation Front (MILF). The full text of Proclamation No. 1959,
signed by President Arroyo and attested by Executive Secretary Eduardo Ermita, reads:

PROCLAMATION NO. 1959

PROCLAIMING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS IN THE PROVINCE OF MAGUINDANAO, EXCEPT FOR CERTAIN AREAS

WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of emergency in the
provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of preventing and
suppressing lawless violence in the aforesaid areas;

WHEREAS, Section 18, Art.VII of the Constitution provides that "x x x In case of invasion or rebellion, when
the public safety requires it, (the President) may, for a period not exceeding sixty days, suspend the

787
privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. x x x"

WHEREAS, R.A. No. 69865 provides that the crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of x x x depriving the Chief Executive or
the Legislature, wholly or partially, of any of their powers or prerogatives."

WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist
government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of
the land and to maintain public order and safety;

WHEREAS, the condition of peace and order in the province of Maguindanao has deteriorated to the
extent that the local judicial system and other government mechanisms in the province are not
functioning, thus endangering public safety;

WHEREAS, the Implementing Operational Guidelines of the GRP-MILF Agreement on the General
Cessation of Hostilities dated 14 November 1997 provides that the following is considered a prohibited
hostile act: "x x x establishment of checkpoints except those necessary for the GRP’s enforcement and
maintenance of peace and order; and, for the defense and security of the MILF in their identified areas,
as jointly determined by the GRP and MILF. x x x"

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue
of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:

SECTION 1. There is hereby declared a state of martial law in the province of Maguindanao, except for the
identified areas of the Moro Islamic Liberation Front as referred to in the Implementing Operational
Guidelines of the GRP-MILF Agreement on the General Cessation of Hostilities.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area
for the duration of the state of martial law.6

On 6 December 2009, President Arroyo submitted her Report to Congress in accordance with the
provision in Section 18, Article VII of the 1987 Constitution, which states that "within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress." In her Report, President Arroyo
presented the following justifications for imposing martial law and suspending the writ in Maguindanao,

788
to wit:

Pursuant to the provision of Section 18, Article VII of the 1987 Constitution, the President of the Republic
of the Philippines is submitting the hereunder Report relative to Proclamation No. 1959 "Proclaiming a
State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of
Maguindanao, except for Certain Areas," which she issued on 04 December 2009, as required by public
safety, after finding that lawless elements have taken up arms and committed public uprising against the
duly constituted government and against the people of Maguindanao, for the purpose of removing from
the allegiance to the Government or its laws, the Province of Maguindanao, and likewise depriving the
Chief Executive of her powers and prerogatives to enforce the laws of the land and to maintain public
order and safety, to the great damage, prejudice and detriment of the people in Maguindanao and the
nation as a whole.

xxx

The capture of identified leader Mayor Andal Ampatuan, Jr. would have resulted in the expeditious
apprehension and prosecution of all others involved in the gruesome massacre, but the situation proved
the contrary. The Ampatuan group backed by formidable group of armed followers, have since used their
strength and political position to deprive the Chief Executive of her power to enforce the law and to
maintain public order and safety. More importantly, a separatist group based in Maguindanao has joined
forces with the Ampatuans for this purpose. These are the facts:

1. Local government offices in the province of Maguindanao were closed and ranking local government
officials refused to discharge their functions, which hindered the investigation and prosecution team from
performing their tasks;

2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death certificates of
the victims purportedly upon the orders of Andal Ampatuan Sr.;

3. The local judicial system has been crippled by the absence or non-appearance of judges of local courts,
thereby depriving the government of legal remedies in their prosecutorial responsibilities (i.e. issuance of
warrants of searches, seizure and arrest). While the Supreme Court has designated an Acting Presiding
Judge from another province, the normal judicial proceedings could not be carried out in view of threats
to their lives or safety, prompting government to seek a change of venue of the criminal cases after
informations have been filed.

Duly verified information disclosed that the Ampatuan group is behind the closing down of government

789
offices, the refusal of local officials to discharge their functions and the simultaneous absence or non-
appearance of judges in local courts.

Detailed accounts pertaining to the rebel armed groups and their active movements in Maguindanao have
been confirmed:

I. As of November 29, 2009, it is estimated that there are about 2,413 armed combatants coming from
the municipalities of Shariff Aguak, Datu Unsay, Datu Salibo, Mamasapano, Datu Saudi Ampatuan
(Dikalungan), Sultan Sa Barungis, Datu Piang, Guindulungan, and Talayan, who are in possession of around
2,000 firearms/armaments.

II. The Ampatuan group has consolidated a group of rebels consisting of 2,413 heavily armed men, with
1,160 of them having been strategically deployed in Maguindanao. Validated information on the
deployment of rebels are as follows:

I. Around five hundred (500) armed rebels with 2 "Sanguko" armored vehicles are in offensive position in
the vicinity of Kakal, Ampatuan, Dimampao, Mamasapano and Sampao Ampatuan.

II. A group with more or less 200 armed rebels has moved from Old Maganoy into an offensive position.

III. More or less 80 fully armed rebels remain in Tuka, Mamasapano.

IV. More or less 50 fully armed rebels led by a former MNLF Commander are in offensive position in
Barangay Baital, Rajah Buayan.

V. More or less 70 fully armed rebels with two (2) M60 LMG remain in offensive position in the vicinity of
Barangay Kagwaran, Barangay Iginampong, Datu Unsay (right side of Salvo-General Santos City national
highway).

VI. More or less 60 fully armed rebels with four (4) M60 LMG remain in offensive position in the vicinity
of Kinugitan, the upper portion of Barangay Maitumaig, Datu Unsay.

VII. Kagui Akmad Ampatuan was sighted in Sultan Sa Barongis with 400 armed rebels. Locals heard him

790
uttered "PATAYAN NA KUNG PATAYAN."

VIII. More or less 100 armed rebels led by one of the identified leaders in the massacre have been sighted
at the quarry of Barangay Lagpan, boundary of Rajah Buayan and Sultan Sa Barongis. The group is armed
with one (1) 90RR, one (1) cal 50 LMG, two (2) cal 30 LMG, two (2) 60 mm mortar and assorted rifles.

The strength of the rebels is itself estimated to be around 800 with about 2,000 firearms (Fas). These
forces are concentrated in the following areas in Maguindanao which are apparently also their political
stronghold:

xxx

The existence of this armed rebellion is further highlighted by the recent recovery of high powered
firearms and ammunitions from the 400 security escorts of Datu Andal Ampatuan Sr.

xxx

Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in
strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu
Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and
patrol cars with unauthorized "PNP/Police" markings, all together confirm the existence of armed public
uprising for the political purpose of:

1. removing allegiance from the national government of the Province of Maguindanao; and,

2. depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to
maintain public order and safety.

While the government is at present conducting legitimate operations to address the on-going rebellion,
public safety still requires the continued implementation of martial law and the suspension of the privilege
of the writ of habeas corpus in the Province of Maguindanao until the time that such rebellion is
completely quelled.7 (Emphasis supplied)

791
In the meantime, the present petitions were filed impugning the constitutionality of Proclamation No.
1959.

1. G.R. No. 190293 is a petition "for the issuance of a temporary restraining order and writs of prohibition
and preliminary prohibitory injunction (1) to declare Proclamation No. 1959 or any act, directive or order
arising from or connected to it as unconstitutional, and (2) to enjoin public respondents from further
enforcing the same."

2. G.R. No. 190294 is a petition for certiorari assailing the constitutionality of Proclamation No. 1959 "for
gross insufficiency of the factual basis in proclaiming a state of martial law and suspending the [writ] in
the Province of Maguindanao." It prayed for the issuance of a writ of prohibition under Section 2 of Rule
65 to enjoin and prohibit respondents from enforcing Proclamation No. 1959.

3. G.R. No. 190301 is a petition seeking "the nullification of Proclamation No. 1959, proclaiming a state of
martial law and suspending the [writ] in the province of Maguindanao, except for certain areas, as it is
patently illegal and unconstitutional for lack of any factual basis."

4. G.R. No. 190302 is a petition for certiorari to declare Proclamation No. 1959 as null and void for being
unconstitutional, and for prohibition to enjoin respondents from further actions or proceedings in
enforcing or implementing Proclamation No. 1959.

5. G.R. No. 190307 is a petition for certiorari, prohibition, and mandamus with a prayer for a preliminary
prohibitory injunction and/or a temporary restraining order, and/or a petition for review pursuant to
Article VII, Section 18, paragraph 3 of the 1987 Constitution, asking the Court to declare that then
Executive Secretary Eduardo Ermita committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he signed, in the name of President Arroyo, Proclamation No. 1959. The petition also
prayed for the issuance of a Temporary Restraining Order and/or preliminary prohibitory injunction,
prohibiting respondents, and anyone acting under their authority, stead, or behalf, from implementing
Proclamation No. 1959 during the pendency of the case.

6. G.R. No. 190356 is a petition for prohibition, with an application for the issuance of a temporary
restraining order and/or a writ of preliminary injunction, assailing the constitutionality and the sufficiency
of the factual basis of Proclamation No. 1959, declaring a state of martial law in the province of
Maguindanao (except for identified areas of the MILF) and suspending the writ in the same area.

7. G.R. No. 190380 is a petition for certiorari assailing the validity of Proclamation No. 1959, declaring a
state of martial law in the province of Maguindanao, except for the identified areas of the MILF, and

792
suspending the writ in the same area.

On 9 December 2009, Congress convened in joint session pursuant to Section 18, Article VII of the 1987
Constitution, which provides, "The Congress, if not in session, shall, within twenty-four hours following
such proclamation [of martial law] or suspension [of the writ], convene in accordance with its rules
without need of a call."

Meanwhile, eight days after the declaration of martial law, on 12 December 2009, President Arroyo issued
Proclamation No. 1963 lifting martial law and restoring the writ in Maguindanao. The full text of
Proclamation No. 1963, signed by President Arroyo and attested by Executive Secretary Eduardo Ermita,
reads:

PROCLAMATION NO. 1963

PROCLAIMING THE TERMINATION OF THE STATE OF MARTIAL LAW AND THE RESTORATION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO

WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of emergency in the
provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of preventing and
suppressing lawless violence in the aforesaid areas;

WHEREAS, by virtue of the powers granted under Section 18, Article VII of the Constitution, the President
of the Philippines promulgated Proclamation No. 1959 on December 4, 2009, proclaiming a state of
martial law and suspending the privilege of the writ of Habeas Corpus in the province of Maguindanao,
except for certain areas;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported that over
six hundred (600) persons who allegedly rose publicly and took up arms against the Government have
surrendered or have been arrested or detained;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported that the
areas where heavily armed groups in the province of Maguindanao established positions to resist
government troops have been cleared;

793
WHEREAS, the court and prosecutors’ offices of Cotabato City have resumed normal working hours,
paving the way for the criminal justice system in Maguindanao to be restored to normalcy;

WHEREAS, the Vice-Governor of the Autonomous Region of Muslim Mindanao has assumed as Acting
Governor, paving the way for the restoration of the functioning of government mechanisms in the
province of Maguindanao;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue
of the powers vested in me by the Constitution and by law, do hereby revoke Proclamation No. 1959 and
proclaim the termination of the state of martial law and the restoration of the privilege of the writ of
habeas corpus in the province of Maguindanao; provided that Proclamation No. 1946 shall continue to be
in force and effect.8

In the Resolutions dated 8 and 15 December 2009,9 the Court consolidated the petitions and required the
Office of the Solicitor General and the respondents to comment on the petitions.

In a Resolution dated 12 January 2010, the Court resolved "to appoint as amici curiae Justice Vicente
Mendoza, Senator Joker Arroyo, and Father Joaquin Bernas, [S.J.] and request them to submit their
respective Amicus Brief on the questions to be addressed by the parties."10

Meanwhile, on 9 December 2009, an Information for rebellion was filed before the Regional Trial Court,
Branch 15, Cotabato City (RTC-Cotabato), against Ampatuan, et al.11 The information reads:

That on or about 27th day of November, 2009, and continuously thereafter, until the present time, in
Maguindanao Province and within the jurisdiction of this Honorable Court, accused Datu Andal Ampatuan,
Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan and Datu Sajid Islam
Uy Ampatuan as heads of the rebellion, conspiring, confederating and cooperating with each other, as
well as with the other accused as participants or executing the commands of others in the rebellion and
also with other John Does whose whereabouts and identities are still unknown, the said accused, who are
heads of the rebellion, did then and there willfully, unlawfully and feloniously help, support, promote,
maintain, cause, direct and/or command their co-accused who are their followers to rise publicly and take
arms against the Republic of the Philippines, or otherwise participate in such armed public uprising, for
the purpose of removing allegiance to the government or its laws, the territory of the Republic of the
Philippines or any part thereof or depriving the Chief Executive of any of her powers or prerogatives as in
fact they have been massing up armed men and organizing assemblies, as a necessary means to commit
the crime of rebellion, and in furtherance thereof, have then and there committed acts preventing public
prosecutors from being available to conduct inquest and preliminary investigations. There were massive
formations of numerous armed civilians supported by armored vehicles and under the command of the

794
Ampatuans who have formed a private army to resist government troops; that the local provincial
government of Maguindanao could not function with their employees going on mass leave and their
respective offices were closed and not functioning. The Regional Trial Courts of the area are not
functioning, refused to accept the application for search warrants for violation of PD 1866 to authorize
the search of the properties of the heads of the rebellion; and that there was undue delay in the issuance
of court processes despite the exigency of the situation.

CONTRARY TO LAW.12

On the next day, 10 December 2009, accused Ampatuan, et al. filed an Urgent Omnibus Motion, which
included a motion for judicial determination of probable cause for the offense charged. On the same day,
the Acting Presiding Judge of RTC-Cotabato issued an Order, stating that "the Court needs time to go over
the resolution finding probable cause against the accused Datu Andal Ampatuan, Sr., [et al.]."

On 1 February 2010, the Regional Trial Court of Quezon City received the records of the case, pursuant to
the Supreme Court’s En Banc Resolution, dated 12 January 2010, which ordered the transfer of venue of
the rebellion case to Quezon City. The case, docketed as Criminal Case No. Q-10-162667 and entitled
People of the Philippines v. Datu Andal Ampatuan, Sr., et al., was raffled to Branch 77 of the Regional Trial
Court of Quezon City (RTC-Quezon City) on 2 February 2010.

On 3 February 2010, the accused filed an Urgent Motion praying for the issuance of an order suspending
the transfer of custody of all the accused pending the resolution of their motion for judicial determination
of probable cause.

On 26 March 2010, the RTC-Quezon City dismissed the charge of rebellion for lack of probable cause, to
wit:

After a careful and judicious scrutiny of the evidence forming part of the records and those adduced by
the prosecution during the hearing on the motion for judicial determination of probable cause, the Court
is convinced that there exist[s] no probable cause to hold under detention and to indict the accused for
rebellion.

xxxx

Rebellion under Article 134 of the Revised Penal Code is committed –

795
[B]y rising publicly and taking arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.

xxxx

The essential element of public armed uprising against the government is lacking. There were no masses
or multitudes involving crowd action done in furtherance of a political end. So, even assuming that there
was uprising, there is no showing that the purpose of the uprising is political, that is, to overthrow the
duly constituted government in order to establish another form of government. In other words, the
second element is also absent.

xxxx

x x x It is quite interesting that the prosecution failed to present any particular instance where the accused
had directly or indirectly prevented government prosecutors from performing their job relative to the

796
prosecution of the suspects in the infamous Maguindanao massacre.

On the contrary, documentary evidence on record shows that the alleged principal suspect in the mass
killings, Datu Andal Ampatuan, Jr., was made to undergo inquest proceedings at General Santos City,
immediately after he was taken into custody by law enforcement authorities. This alone belies the
prosecution’s theory that the prosecutors were not available to conduct inquest and preliminary
investigations relative to the mass killings in the Municipality of Ampatuan, Province of Maguindanao.

xxxx

x x x [T]he intelligence reports presented by the military and police are unfounded. The reports do not
suggest that the alleged armed groups loyal to the accused are initiating violent and hostile actions,
whether directly or indirectly, against government security forces. Even the discovery and confiscation of
large cache of firearm and ammunitions, allegedly belonging to the Ampatuans, cannot be considered as
an act of rebellion. In fact, the firearms and ammunitions were subsequently unearthed, recovered and
confiscated from different places. The government security forces should have been able to engage and
neutralize the reported armed groups on the basis of its intelligence reports confirming their size, strength
and whereabouts.

xxxx

The statements of prosecution witnesses Mangacop and Dingcong are general allegations. Their
statements do not show that the accused were responsible for the mass leave of officials and employees
of the local government units. There is no evidence to show that the accused actually prevented the local
officials and employees from reporting to their offices.

The evidence will show that the Department of Interior and Local Government and the Philippine National
Police closed down these offices, without any justifiable reasons. In fact, there were news footages which
showed that many employees were caught by surprise on the unexpected closure of their offices.

xxxx

It is alleged in the Information that the courts were no longer functioning in Cotabato City and in
Maguindanao province, which have jurisdiction over the place of the commission of the massacre. The
factual circumstances, however, belie said allegation. This Court takes judicial notice of the fact that no

797
less than the Supreme Court of the Republic of the Philippines had denied the allegation that civilian
courts were or are no longer functioning in Maguindanao.

xxxx

WHEREFORE, premises considered, the Court finds that there exists no probable cause to indict and hold
under detention the accused for rebellion. Accordingly, the instant case is hereby dismissed and the
accused-movants are hereby ordered released from further detention, unless they are held by a court of
law for other lawful cause/s.

Let this Order be served personally upon the accused-movants, through the responsible officers of the
law having custody over them, who are hereby directed to release the accused from detention
immediately upon receipt hereof.

SO ORDERED.13

In an Order dated 28 May 2010, the RTC-Quezon City denied the prosecution’s motion for reconsideration
of the Order dated 26 March 2010.

The DOJ filed a petition for certiorari14 before the Court of Appeals assailing the dismissal of the rebellion
charges against accused Ampatuan, et al.

In a Decision promulgated on 15 December 2011,15 the Court of Appeals denied the petition for certiorari.
Quoting the findings of the RTC-Quezon City, the Court of Appeals held that there is no probable cause as
there is no showing that all the elements of the crime of rebellion are present. The Court of Appeals stated
that "a review of its own narration of events only lends to the belief that the rebellion existed only in the
minds of the complainants." The Court of Appeals ruled that there was no armed public uprising, finding
"no proof that armed groups were massing up and were planning to instigate civil disobedience and to
challenge the government authorities for political ends."

The Issues

The crux of the present controversy is the constitutionality of Proclamation No. 1959, declaring martial
law and suspending the writ in Maguindanao. The threshold issue before this Court is whether there is

798
sufficient factual basis for the issuance of Proclamation No. 1959 based on the stringent requirements set
forth in Section 18, Article VII of the 1987 Constitution.

In its 15 December 2009 Resolution, the Court additionally posed the following questions for resolution:

1. Whether the issuance of Proclamation No. 1963, lifting martial law and restoring the writ in
Maguindanao, rendered the issues raised in the present petitions moot and academic;

2. Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the same meaning
as the term "rebellion" that is defined in Article 134 of the Revised Penal Code;

3. Whether the declaration of martial law or the suspension of the writ authorizes warrantless arrests,
searches and seizures;

4. Whether the declaration of martial law or the suspension of the writ is a joint and sequential function
of the President and Congress such that, without Congressional action on the proclamation either
affirming or revoking it, the President having in the meantime lifted the declaration and restored the writ,
this Court has nothing to review;

5. If the constitutional power of this Court to review the factual basis of the declaration of martial law or
suspension of the writ can be exercised simultaneously with the constitutional power of Congress to
revoke the declaration or suspension, and the decision of this Court conflicts with the decision of
Congress, which decision shall prevail; and

6. Whether this Court’s determination of the sufficiency of the factual basis of the declaration of martial
law or suspension of the writ, which in the meantime has been lifted and restored, respectively, would be
essential to the resolution of issues concerning the validity of related acts that the government committed
during the time martial law was in force.

In its Comment Re: Resolution dated 15 December 2009, the OSG raised the issue of whether petitioners
possess legal standing to challenge the constitutionality of Proclamation No. 1959.

Discussion

799
I dissent from the majority's dismissal of the petitions as moot. I find Proclamation No. 1959
unconstitutional for lack of factual basis as required in Section 18, Article VII of the 1987 Constitution for
the declaration of martial law and suspension of the writ. The majority in effect refuses to exercise this
Court’s constitutional power in Section 18 of Article VII, to "review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof."

Before proceeding to the substantive issues, I shall first discuss the issue on locus standi.

In its Comment Re: Resolution dated 15 December 2009, the OSG questioned the legal standing of
petitioners in challenging the constitutionality of Proclamation No. 1959. The OSG argued that the phrase
"any citizen" in Section 18, Article VII of the 1987 Constitution must be read in conjunction with the phrase
"appropriate proceeding." Since petitioners deemed the original actions for certiorari and prohibition as
the appropriate proceeding referred to in Section 18, Article VII of the Constitution, petitioners must
satisfy the requirements under Rule 65 of the Rules of Court, one of which is the institution of the action
by the aggrieved party. The OSG pointed out that none of the petitioners qualify as an aggrieved party.

This is error.

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged.16 In case of a suit questioning the sufficiency of the factual basis of the proclamation of
martial law or suspension of the writ, such as here, Section 18, Article VII of the Constitution expressly
provides:

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing. (Emphasis supplied)

It is clear that the Constitution explicitly clothes "any citizen" with the legal standing to challenge the
constitutionality of the declaration of martial law or suspension of the writ. The Constitution does not
make any distinction as to who can bring such an action. As discussed in the deliberations of the
Constitutional Commission, the "citizen" who can challenge the declaration of martial law or suspension
of the writ need not even be a taxpayer.17 This was deliberately designed to arrest, without further delay,
the grave effects of an illegal declaration of martial law or suspension of the writ, and to provide
immediate relief to those aggrieved by the same. Accordingly, petitioners, being Filipino citizens, possess
legal standing to file the present petitions assailing the sufficiency of the factual basis of Proclamation No.

800
1959.

Moreover, given the transcendental importance of the issues raised in the present petitions, the Court
may relax the standing requirement and allow a suit to prosper even where there is no direct injury to the
party claiming the right of judicial review.18 The Court has held:

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,
where we had occasion to rule:

‘x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they [involved] only an indirect and general interest shared
in common with the public. The Court dismissed the objection that they were not proper parties and ruled
that ‘transcendental importance to the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure.’ We have since then applied the
exception in many other cases.19 (Emphasis supplied)

I.

Whether the issuance of Proclamation No. 1963,

lifting martial law and restoring the writ in the province of Maguindanao,

rendered the issues raised in the petitions moot and academic.

The majority dismisses the petitions on mootness, agreeing with respondents' contention that the
issuance of Proclamation No. 1963, lifting martial law and restoring the writ in the province of
Maguindanao, rendered the issues raised in the present petitions moot and academic. Respondents
maintain that the petitions have ceased to present an "actual case or controversy" with the lifting of
martial law and the restoration of the writ, the sufficiency of the factual basis of which is the subject of
these petitions. Proclamation No. 1963 is allegedly a "supervening event" that rendered of no practical
use or value the consolidated petitions.

As a rule, courts may exercise their review power only when there is an actual case or controversy, which
involves a conflict of legal claims susceptible of judicial resolution. Such a case must be "definite and
concrete, touching the legal relations of parties having conflicting legal interests;" a real, as opposed to

801
an imagined, controversy calling for a specific relief.20

Corollarily, courts generally decline jurisdiction over a moot and academic case or outrightly dismiss it on
the ground of mootness. A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that assuming jurisdiction over the same, and eventually deciding it,
would be of no practical use or value.21

In David v. Arroyo,22 this Court held that the "moot and academic" principle is not a magical formula that
automatically dissuades courts in resolving a case. Courts are not prevented from deciding cases,
otherwise moot and academic, if (1) there is a grave violation of the Constitution;23 (2) the situation is of
exceptional character and of paramount public interest;24 (3) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;25 and (4) the case is
capable of repetition yet evading review.26

In Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral
Domain (GRP),27 the Court ruled that once a suit is filed, the Court cannot automatically be deprived of
its jurisdiction over a case by the mere expedient of the doer voluntarily ceasing to perform the challenged
conduct. Otherwise, the doer would be dictating when this Court should relinquish its jurisdiction over a
case. Further, a case is not mooted when the plaintiff seeks damages or prays for injunctive relief against
the possible recurrence of the violation.28

Contrary to the majority opinion, the present petitions fall squarely under these exceptions, justifying this
Court’s exercise of its review power.

First, whether Proclamation No. 1959 complied with the requirements under Section 18, Article VII of the
Constitution is without doubt an extremely serious constitutional question. In order to forestall any form
of abuse in the exercise of the President’s extraordinary emergency powers, as what happened during the
Martial Law regime under former President Ferdinand Marcos (President Marcos), the 1987 Constitution
has carefully put in place specific safeguards, which the President must strictly observe. Any declaration
of martial law or suspension of the writ falling short of the constitutional requirements must be stricken
down as a matter of constitutional duty by this Court.

Second, whether the President exercised her Commander-in-Chief powers in accordance with the
Constitution indisputably presents a transcendental issue fully imbued with public interest. I agree with
amicus curiae Father Joaquin Bernas’ opinion: "The practice of martial rule can have a profoundly
disturbing effect on the life, liberty and fortunes of people. Likewise, the actions taken by the police and
military during the period when martial law is in effect can have serious consequences on fundamental
rights."29

802
Third, the issue on the constitutionality of Proclamation No. 1959 unquestionably requires formulation of
controlling principles to guide the Executive, Legislature, and the public.

The President’s issuance of Proclamation No. 1959 generated strong reactions from various sectors of
society. This, of course, is an expected response from a nation whose painful memory of the dark past
remains fresh. The nation remembers that martial law was the vehicle of President Marcos to seize
unlimited State power, which resulted in gross and wanton violations of fundamental human rights of the
people. That era saw the collapse of the rule of law and what reigned supreme was a one man-rule for
the dictator’s own personal benefit.

The present controversy, being the first case under the 1987 Constitution involving the President’s
exercise of the power to declare martial law and suspend the writ, provides this Court with a rare
opportunity,30 which it must forthwith seize, to formulate controlling principles for the guidance of all
sectors concerned, most specially the Executive which is in charge of enforcing the emergency measures.
Dismissing the petitions on the ground of mootness will most certainly deprive the entire nation of
instructive and valuable principles on this extremely crucial national issue.

Fourth, the present case is capable of repetition yet evading review. I agree with Father Bernas’ view:
"[H]istory clearly attests that the events that can lead to martial law, as well as the imposition of martial
law itself, and the suspension of the privilege together with actions taken by military and police during a
period of martial law are capable of repetition and are too important to allow to escape review through
the simple expedient of the President lifting a challenged proclamation."31

Fifth, the respondent’s or doer’s voluntary cessation of the questioned act does not by itself deprive the
Court of its jurisdiction once the suit is filed. In this case, President Arroyo, after eight days from the
issuance of Proclamation No. 1959, issued Proclamation No. 1963 revoking Proclamation No. 1959.
President Arroyo’s lifting of martial law and restoration of the writ translate to a voluntary cessation of
the very acts complained of in the present petitions. However, the present petitions were filed with this
Court while Proclamation No. 1959 was still in effect and before Proclamation No. 1963 was issued, thus
foreclosing any legal strategy to divest this Court of its jurisdiction by the mere cessation or withdrawal
of the challenged act.

Moreover, the fact that every declaration of martial law or suspension of the writ will involve its own set
of circumstances peculiar to the necessity of time, events or participants should not preclude this Court
from reviewing the President’s use of such emergency powers. Whatever are the circumstances
surrounding each declaration of martial law or suspension of the writ, the declaration or suspension will
always be governed by the same safeguards and limitations prescribed in the same provisions of the

803
Constitution. Failing to determine the constitutionality of Proclamation No. 1959 by dismissing the cases
on the ground of mootness sets a very dangerous precedent to the leaders of this country that they could
easily impose martial law or suspend the writ without any factual or legal basis at all, and before this Court
could review such declaration, they would simply lift the same and escape possible judicial rebuke.

II.

Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the same meaning as
the term "rebellion" that is

defined in Article 134 of the Revised Penal Code.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968,32 defines the crime of
rebellion, thus:

Art. 134. Rebellion or insurrection; How committed. — The crime of rebellion or insurrection is committed
by rising publicly and taking arms against the Government for the purpose of removing from the allegiance
to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of
land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of
any of their powers or prerogatives.

The Constitution, however, does not provide any definition of the term "rebellion." Portions of the first
paragraph of Section 18, Article VII of the Constitution, where the term "rebellion" appears, read:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law.

Respondents submit that the term "rebellion" must, "for constitutional law purposes, be applied in such
manner as to be amply responsive to the call of the times." Respondents point out that the deliberations
of the 1986 Constitutional Commission reveal that the concept of the term "rebellion" depends much on
its magnitude and scope, as determined by the President based on prevailing circumstances.33

I disagree. The term "rebellion" in Section 18, Article VII of the 1987 Constitution must be understood as

804
having the same meaning as the crime of "rebellion" that is defined in Article 134 of the Revised Penal
Code, as amended.

First, this is the clear import of the last two paragraphs of Section 18, Article VII of the Constitution, which
explicitly state:

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged
for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied)

For a person to be judicially charged for rebellion, there must necessarily be a statute defining rebellion.
There is no statute defining rebellion other than the Revised Penal Code. Hence, "one can be ‘judicially
charged’ with rebellion only if one is suspected of having committed acts defined as rebellion in Article
134 of the Revised Penal Code."34

Second, the Revised Penal Code definition of rebellion is the only legal definition of rebellion known and
understood by the Filipino people when they ratified the 1987 Constitution. Indisputably, the Filipino
people recognize and are familiar with only one meaning of rebellion, that is, the definition provided in
Article 134 of the Revised Penal Code. To depart from such meaning is to betray the Filipino people’s
understanding of the term "rebellion" when they ratified the Constitution. There can be no question that
"the Constitution does not derive its force from the convention which framed it, but from the people who
ratified it."35

Third, one of the Whereas clauses of Proclamation No. 1959 expressly cites the Revised Penal Code
definition of rebellion, belying the government’s claim that the Revised Penal Code definition of rebellion
merely guided the President in issuing Proclamation No. 1959.

In SANLAKAS v. Executive Secretary,36 where the Court regarded President Arroyo’s declaration of a state
of rebellion in Proclamation No. 427 a superfluity,37 the term "rebellion" in said proclamation referred to
the crime of rebellion as defined in Article 134 of the Revised Penal Code. Proclamation No. 427
pertinently reads:

DECLARING A STATE OF REBELLION

805
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms
and explosives, acting upon the instigation and command and direction of known and unknown leaders,
have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for,
and took arms against the duly constituted Government, and continue to rise publicly and show open
hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces
of the Philippines and the Philippine National Police, and depriving the President of the Republic of the
Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion
punishable under Article 134 of the Revised Penal Code, as amended; x x x (Emphasis supplied)

In issuing Proclamation No. 427, President Arroyo relied on the Revised Penal Code definition of rebellion
in declaring a state of rebellion. In other words, President Arroyo understood that, for purposes of
declaring a state of rebellion, the term "rebellion" found in the Constitution refers to the crime of rebellion
defined in Article 134 of the Revised Penal Code.

In exercising the Commander-in-Chief powers under the Constitution, every President must insure the
existence of the elements of the crime of rebellion, which are: (1) there is a (a) public uprising and (b)
taking arms against the Government; and (2) the purpose of the uprising or movement is either (a) to
remove from the allegiance to the Government or its laws: (1) the territory of the Philippines or any part
thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers and prerogatives.38

To repeat, the term "rebellion" in Section 18, Article VII of the Constitution must be understood to have
the same meaning as the crime of rebellion defined in Article 134 of the Revised Penal Code. Ascribing
another meaning to the term "rebellion" for constitutional law purposes, more specifically in imposing
martial law and suspending the writ, different from the definition in Article 134 of the Revised Penal Code,
overstretches its definition without any standards, invites unnecessary confusion, and undeniably defeats
the intention of the Constitution to restrain the extraordinary Commander-in-Chief powers of the
President.

Since the term "rebellion" in Section 18, Article VII of the Constitution pertains to the crime of rebellion
as defined in Article 134 of the Revised Penal Code, the next question turns on the kind of proof required
for a valid declaration of martial law and suspension of the writ.

While the Constitution expressly provides strict safeguards against any potential abuse of the President’s
emergency powers, the Constitution does not compel the President to produce such amount of proof as
to unduly burden and effectively incapacitate her from exercising such powers.

806
Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof
required for convicting an accused charged with a criminal offense. Section 2, Rule 133 of the Rules of
Court defines proof beyond reasonable doubt as follows:

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind.

Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to
establish the existence of rebellion or invasion with such amount of proof before declaring martial law or
suspending the writ amounts to an excessive restriction on "the President’s power to act as to practically
tie her hands and disable her from effectively protecting the nation against threats to public safety."39

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable
for a lawful declaration of martial law or suspension of the writ. This amount of proof likewise unduly
restrains the President in exercising her emergency powers, as it requires proof greater than
preponderance of evidence although not beyond reasonable doubt.40

Not even preponderance of evidence,41 which is the degree of proof necessary in civil cases, is demanded
for a lawful declaration of martial law.

By preponderance of evidence is meant that the evidence as a whole adduced by one side is superior to
that of the other. It refers to the weight, credit and value of the aggregate evidence on either side and is
usually considered to be synonymous with the term "greater weight of evidence" or "greater weight of
the credible evidence". It is evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto.42

Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act
and impose martial law or suspend the writ unreasonably curtails the President’s emergency powers.

Similarly, substantial evidence constitutes an unnecessary restriction on the President’s use of her
emergency powers. Substantial evidence is the amount of proof required in administrative or quasi-
judicial cases, or that amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.43

807
I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies
the standard of proof for a valid declaration of martial law and suspension of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by the
prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been defined as a
"set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the
offense charged in the Information or any offense included therein has been committed by the person
sought to be arrested."44

In determining probable cause, the average man weighs the facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common
sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused. Probable cause demands more than
suspicion; it requires less than evidence that would justify conviction.45 (Emphasis supplied)

Probable cause, basically premised on common sense, is the most reasonable, most practical, and most
expedient standard by which the President can fully ascertain the existence or non-existence of rebellion,
necessary for a declaration of martial law or suspension of the writ. Therefore, lacking probable cause of
the existence of rebellion, a declaration of martial law or suspension of the writ is without any basis and
thus, unconstitutional.

The requirement of probable cause for the declaration of martial law or suspension of the writ is
consistent with Section 18, Article VII of the Constitution. It is only upon the existence of probable cause
that a person can be "judicially charged" under the last two paragraphs of Section 18, Article VII, to wit:

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged
for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied)

III.

Whether the declaration of martial law or the suspension

of the writ authorizes warrantless arrests, searches and seizures.

808
Section 18, Article VII of the Constitution partially states:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege
of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged
for rebellion or offenses inherent in, or directly connected with, invasion.

The 1935 and 1973 Constitutions did not contain a similar provision. Obviously, this new provision in the
1987 Constitution was envisioned by the framers of the Constitution to serve as an essential safeguard
against potential abuses in the exercise of the President’s emergency powers.

The Constitution now expressly declares, "A state of martial law does not suspend the operation of the
Constitution." Neither does a state of martial law supplant the functioning of the civil courts or legislative
assemblies. Nor does it authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, or automatically suspend the writ. There is therefore no
dispute that the constitutional guarantees under the Bill of Rights remain fully operative and continue to
accord the people its mantle of protection during a state of martial law. In case the writ is also suspended,
the suspension applies only to those judicially charged for rebellion or offenses directly connected with
invasion.

Considering the non-suspension of the operation of the Constitution during a state of martial law, a
declaration of martial law does not authorize warrantless arrests, searches and seizures, in derogation of
Section 2, Article III of the Constitution, which provides:

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

Warrantless arrests, search and seizure are valid only in instances where such acts are justified, i.e., those
enumerated in Section 5, Rule 113 of the Rules of Court.46

809
In Pequet v. Tangonan,47 decided during the Martial Law regime under former President Marcos, the
Court stressed that military personnel, in effecting arrests, must strictly observe the applicable Rules of
Court and settled jurisprudence, thus:

Martial law has precisely been provided in both the 1935 Charter and the present Constitution to assure
that the State is not powerless to cope with invasion, insurrection or rebellion or any imminent danger of
its occurrence. When resort to it is therefore justified, it is precisely in accordance with and not in defiance
of the fundamental law. There is all the more reason then for the rule of law to be followed. For as was
so eloquently proclaimed in Ex parte Milligan: "The Constitution is a "law for rulers and for people equally
in war and in peace and covers with the shield of its protection all classes of men at all times and under
all circumstances." It is true, of course, as admitted by Willoughby, who would limit the scope of martial
law power, that the military personnel are called upon to assist in the maintenance of peace and order
and the enforcement of legal norms. They can therefore act like ordinary peace officers. In effecting
arrests, however, they are not free to ignore, but are precisely bound by, the applicable Rules of Court
and doctrinal pronouncements. (Emphasis supplied)

In Aberca v. Ver,48 the Court emphasized that the suspension of the writ does not give imprimatur to
warrantless arrests in violation of the Constitution. In that case, which involved the issue of whether the
suspension of the writ bars a civil action for damages for illegal searches and for other human rights
violations committed by the military, the Court held:

At the heart of petitioners’ complaint is Article 32 of the Civil Code which provides:

xxxx

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished
rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those
sacred rights with impunity. In times of great upheaval or of social and political stress, when the
temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law
of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and
liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling
power. The rule of law must prevail, or else liberty will perish. x x x

xxxx

810
It may be that the respondents, as members of the Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion
and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of
martial law on January 27, 1981, and in pursuance of such objective, to launch pre-emptive strikes against
alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a
roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights
and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution
remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience
and allegiance at all times.

xxxx

This is not to say that military authorities are restrained from pursuing their assigned task or carrying out
their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies,
whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic
institutions and imperil their very existence. What we are merely trying to say is that in carrying out this
task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our
faith will start to unravel. x x x

We do not agree. We find merit in petitioners’ contention that the suspension of the privilege of the writ
of habeas corpus does not destroy petitioners’ right and cause of action for damages for illegal arrest and
detention and other violations of their constitutional rights. The suspension does not render valid an
otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek
release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty.49
(Emphasis supplied)

IV.

Whether the declaration of martial law or suspension of

the writ is a joint and sequential function of the

President and Congress such that, without Congressional action

on the proclamation or suspension either affirming or revoking it,

the President having in the meantime lifted the same,

this Court has nothing to review.

811
Section 18, Article VII of the 1987 Constitution provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

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

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing.

The Constitution vests exclusively in the President, as Commander-in-Chief, the emergency powers to
declare martial law or suspend the writ in cases of rebellion or invasion, when the public safety requires
it. The imposition of martial law or suspension of the writ takes effect the moment it is declared by the
President. No other act is needed for the perfection of the declaration of martial law or the suspension of
the writ. As amicus curiae retired Justice Mendoza states:

A declaration of martial law by the President alone is complete by itself and does not require for its validity
the approval or concurrence of Congress. It is a power placed solely in the keeping of the President to
enable him to secure the people from harm and restore the public order so that they can enjoy their
freedoms. Because it is liable to abuse, it is made subject to check by Congress and/or the [Supreme
Court].

The power of Congress is to revoke – not to confirm or ratify, much less to approve, – the President’s
action declaring martial law or suspending the privilege of the writ of habeas corpus. It is a veto power,
just as the power of the judiciary to review the President’s action is a veto power on the Executive’s action.

812
It is clear, therefore, that the President’s power to declare martial law or suspend the writ is independent,
separate, and distinct from any constitutionally mandated act to be performed by either the Legislature
or the Judiciary. It is neither joint nor sequential with Congress’ power to revoke the declaration or
suspension or to extend it upon the initiative of the President. Accordingly, even if Congress has not acted
upon the President’s declaration or suspension, the Court may review the declaration or suspension in an
appropriate proceeding filed by any citizen. Otherwise stated, Congress’ inaction on the declaration or
suspension is not determinative of the Court’s exercise of its review power under Section 18, Article VII
of the Constitution.

To hold that the power of this Court to review the President’s declaration of martial law or suspension of
the writ is sequential, or joint, with the review power of Congress is to make it impossible for this Court
to decide a case challenging the declaration or suspension "within thirty days from its filing," as mandated
by the Constitution. Congress has no deadline when to revoke the President’s declaration or suspension.
Congress may not even do anything with the President’s declaration or suspension and merely allow it to
lapse after 60 days. On the other hand, the Constitution mandates that this Court "must promulgate its
decision thereon within thirty days from [the] filing" of the case. Clearly, the Court’s review power is
neither sequential nor joint with the review power of Congress.

Moreover, the President’s lifting of the declaration or suspension before this Court could decide the case
within the 30-day period does not operate to divest this Court of its jurisdiction over the case. A party
cannot simply oust the Court’s jurisdiction, already acquired, by a party’s own unilateral act. The
President’s lifting of the declaration or suspension merely means that this Court does not have to decide
the case within the 30-day period, as the urgency of deciding has ceased. Certainly, the Court is not
divested of its jurisdiction simply because the urgency of deciding a case has ceased.

V.

If the constitutional power of this Court to review the factual basis

of the declaration of martial law or suspension of the writ can be exercised simultaneously with the
constitutional power of Congress to revoke the declaration or suspension, and the decision of this Court
conflicts with the decision of Congress, which decision shall prevail.

The President has the sole and exclusive power to declare martial law or suspend the writ. This power of
the President is subject to review separately by Congress and the Supreme Court. Justice Mendoza
stresses, "Thus, Congress and this Court have separate spheres of competence. They do not act ‘jointly
and sequentially’ but independently of each other."50 Father Bernas points out, "Since the powers of
Congress and the Court are independent of each other, there is nothing to prevent Congress and the Court

813
from simultaneously exercising their separate powers."51

In the exercise by the Court and Congress of their separate "review powers" under Section 18, Article VII
of the Constitution, three possible scenarios may arise.

First, the President’s martial law declaration or suspension of the writ is questioned in the Supreme Court
without Congress acting on the same. Such a situation generates no conflict between the Supreme Court
and Congress. There is no question that the Supreme Court can annul such declaration or suspension if it
lacks factual basis. Congress, whose only power under Section 18, Article VII of the Constitution is to
revoke the declaration or suspension on any ground, is left with nothing to revoke if the Court has already
annulled the declaration or suspension.

Second, Congress decides first to revoke the martial law declaration or suspension of the writ. Since the
Constitution does not limit the grounds for congressional revocation, Congress can revoke the declaration
or suspension for policy reasons, or plainly for being insignificant, as for instance it involves only one
barangay rebelling, or if it finds no actual rebellion. In this case, the Supreme Court is left with nothing to
act on as the revocation by Congress takes effect immediately. The Supreme Court must respect the
revocation by Congress even if the Court believes a rebellion exists because Congress has the unlimited
power to revoke the declaration or suspension.

Third, the Supreme Court decides first and rules that there is factual basis for the declaration of martial
law or suspension of the writ. In such a situation, Congress can still revoke the declaration or suspension
as its power under the Constitution is broader insofar as the declaration or suspension is concerned.
"Congress cannot be prevented by the Court from revoking the President’s decision because it is not for
the Court to determine what to do with an existing factual situation. x x x Congress has been given
unlimited power to revoke the President’s decision."52 In short, even if there is an actual rebellion,
whether affirmed or not by the Supreme Court, Congress has the power to revoke the President’s
declaration or suspension.

In the present controversy, Congress failed to act on Proclamation No. 1959 when it commenced its Joint
Session on 9 December 2009 until the lifting of the martial law declaration and restoration of the writ on
12 December 2009. Congress’ non-revocation of Proclamation No. 1959 categorizes the present case
under the first scenario. In such a situation, where no conflict ensues, Congress’ inaction on Proclamation
No. 1959 does not preclude this Court from ruling on the sufficiency of the factual basis of the declaration
of martial law and suspension of the writ.

VI.

814
Whether this Court’s determination of the sufficiency of the factual basis

of the declaration of martial law and suspension of the writ,

which in the meantime have been lifted, would be essential

to the resolution of issues concerning the validity of related acts

that the government committed during the time

that martial law and the suspension of the writ were in force.

Indisputably, unlawful acts may be committed during martial law or suspension of the writ, not only by
the rebels, but also by government forces who are duty bound to enforce the declaration or suspension
and immediately put an end to the root cause of the emergency. Various acts carried out by government
forces during martial law or suspension of the writ in the guise of protecting public safety may in reality
amount to serious abuses of power and authority. Whatever the Court’s decision will be on the sufficiency
of the factual basis of the President’s declaration or suspension does not preclude those aggrieved by
such illegal acts from pursuing any course of legal action available to them. Therefore, the determination
by this Court of the sufficiency of the factual basis of the declaration or suspension is not essential to the
resolution of issues concerning the validity of related acts that government forces may have committed
during the emergency.

VII.

Whether Proclamation No. 1959 has sufficient factual basis.

The full text of Section 18, Article VII of the 1987 Constitution reads:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period to be determined by the

815
Congress, if the invasion or rebellion shall persist and public safety requires it.

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

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege
of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged
for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

The Commander-in-Chief provisions of the 1935 and 1973 Constitutions, on the other hand, respectively
state:

Section 10(2), Article VII of the 1935 Constitution

2. The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when
the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under Martial Law.

Section 12, Article IX of the 1973 Constitution

816
SEC. 12. The Prime Minister shall be commander-in-chief of all armed forces of the Philippines, and,
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires
it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof
under Martial Law.

Notably, the 1935 and 1973 Constitutions only specify the instances when martial law may be declared or
when the writ may be suspended.

The 1987 Constitution, on the other hand, not only explicitly includes the specific grounds for the
activation of such emergency powers, but also imposes express limitations on the exercise of such powers.
Upon the President’s declaration of martial law or suspension of the writ, the following safeguards are
automatically set into motion: (1) the duration of martial law or suspension of the writ is limited to a
period not exceeding sixty days; (2) the President is mandated to submit a report to Congress within forty-
eight hours from the declaration or suspension; and (3) the declaration or suspension is subject to review
by Congress, which may revoke such declaration or suspension. If Congress is not in session, it shall
convene within 24 hours without need for call.53 In addition, the sufficiency of the factual basis of the
declaration, suspension, or their extension is subject to review by the Supreme Court in an appropriate
proceeding.

The mechanism and limitations laid down in Section 18, Article VII of the Constitution in declaring martial
law or suspending the writ were introduced precisely to preclude a repetition of the kind of martial law
imposed by President Marcos, which ushered in a permanent authoritarian regime. As Father Bernas
wrote in his book:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to
impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that
period upholding the actions taken by Mr. Marcos made authoritarian rule part of Philippine
constitutional jurisprudence. The members of the Constitutional Commission, very much aware of these
facts, went about reformulating the Commander-in-Chief powers with a view to dismantling what had
been constructed during the authoritarian years. The new formula included revised grounds for the
activation of emergency powers, the manner of activating them, the scope of the powers, and review of
presidential action.54

Consistent with the framers’ intent to reformulate the Commander-in-Chief powers of the President, the
1987 Constitution requires the concurrence of two conditions in declaring martial law or suspending the
writ, namely, (1) an actual invasion or rebellion, and (2) public safety requires the exercise of such
power.55 The Constitution no longer allows imminent danger of rebellion or invasion as a ground for the
declaration or suspension, which the 1935 and 1973 Constitutions expressly permitted.

817
In the present case, President Arroyo grounded the declaration of martial law and suspension of the writ
on the existence of rebellion in Maguindanao. In her Report submitted to Congress, President Arroyo cited
the following instances as constitutive of rebellion:

1. Local government offices in the province of Maguindanao were closed and ranking local government
officials refused to discharge their functions, which hindered the investigation and prosecution team from
performing their tasks;

2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death certificates of
the victims purportedly upon the orders of Andal Ampatuan Sr.;

3. The local judicial system has been crippled by the absence or non-appearance of judges of local courts,
thereby depriving the government of legal remedies in their prosecutorial responsibilities (i.e. issuance of
warrants of searches, seizure and arrest). While the Supreme Court has designated an Acting Presiding
Judge from another province, the normal judicial proceedings could not be carried out in view of threats
to their lives or safety, prompting government to seek a change of venue of the criminal cases after
informations have been filed.

xxxx

Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in
strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu
Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and
patrol cars with unauthorized "PNP/Police" markings, all together confirm the existence of armed public
uprising for the political purpose of:

(1) removing allegiance from the national government of the Province of Maguindanao; and,

(2) depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to
maintain public order and safety.

While the government is at present conducting legitimate operations to address the on-going rebellion,
public safety still requires the continued implementation of martial law and the suspension of the privilege
of the writ of habeas corpus in the Province of Maguindanao until the time that such rebellion is

818
completely quelled.56 (Emphasis supplied)

The question now is whether there was probable cause, which is the required quantum of proof, to
declare the existence of rebellion justifying the President’s declaration of martial law and suspension of
the writ.

The answer is in the negative.

The contemporaneous public statements made by the President’s alter egos explaining the grounds for
the issuance of Proclamation No. 1959 negate rather than establish the existence of an actual rebellion in
Maguindanao.

During the interpellations in the Joint Session of Congress, convened pursuant to the provisions of Section
18, Article VII of the Constitution, then Executive Secretary Eduardo Ermita admitted the absence of an
actual rebellion in Maguindanao, to wit:

REP. LAGMAN. Mr. Speaker, Mr. President, a perusal of the text of Proclamation No. 1959 would show
the absence of a clear and categorical finding or determination that actual rebellion is occurring in
Maguindanao. Would that be an accurate observation of a reading of the text of Proclamation No. 1959?

MR. ERMITA. Your Honor, you may be correct that there was no actual rebellion going on. However, all
the indicators that rebellion is, indeed, being committed and happening on the ground is because of the
presence of the armed groups that prevent authorities from being able to do its duty of even effecting
the arrest of those who should be arrested in spite of the testimonies of witnesses.

REP. LAGMAN. Well, we are happy to note that there is an admission that there was no actual rebellion
in Maguindanao. But the presence of armed groups would be indicative of lawless violence which is not
synonymous to rebellion. As a matter of fact, the Maguindanao situationer which was made by Police
Director Andres Caro was premised on a statement that this was the worst election-related violence – an
act of gross lawlessness but definitely not related to rebellion.

x x x x57 (Emphasis supplied)

Also, during the Joint Session, then Senator (now President) Benigno S. Aquino III pointed out the public

819
statements made by former Department of Interior and Local Government Secretary Ronaldo V. Puno,
then Armed Forces of the Philippines spokesperson Lt. Col. Romeo Brawner, and former Defense
Secretary Norberto Gonzales admitting there was no need for martial law:

THE SENATE PRESIDENT. With the indulgence of the Chamber and the Speaker, may we request now to
allow the distinguished Gentleman from Tarlac, Senator Benigno "Noynoy" Aquino III the floor.

SEN. AQUINO. Thank you, Mr. President. May I direct my first question to Secretary Puno. And this is to
lay the proper predicate for our first question. The newspaper has been quoting Secretary Puno as not
having recommended the imposition of martial law prior to its imposition in Maguindanao. May we know
if this was a correct attribution to the Honorable Secretary.

MR. PUNO. Until, Your Honor, Mr. Speaker, Mr. Senate President, until the situation developed where
police officers went absent on leave and joined the rebel forces, and a significant segment of the civilian
armed volunteers of the local governments constituted themselves into a rebel group, until that time I did
not believe that it was necessary that martial law be declared. But upon receipt of a report from the
Armed Forces of the Philippines and the briefing conducted with the National Security Council, where it
was made clear that a separate rebel armed group had already been organized, we concurred, Your
Honor, with the recommendation on martial law.

SEN. AQUINO. For the record, Mr. Senate President and Mr. Speaker, the AFP, we understand, through
the spokesperson, Lt. Col. Romeo Brawner, declared on 13 November 2009 that there is no need for the
declaration of martial law in Maguindanao or elsewhere in the country because the AFP and PNP are on
top of the situation. He was quoted as saying, and we quote: "We now have a level of normalcy in the
Province of Maguindanao, primarily because of the occupation by our government forces and our law
enforcement agencies of the seats of government." Secretary Norberto Gonzales, who unfortunately is
not present, declared on December 1, 2009 that the government’s effort to contain the tension in the
province is holding ground. We also have now the admission by the honorable Secretary Puno that prior
to the undated national security briefing, he was also of the opinion that martial law was not necessary in
Maguindanao. x x x58

Even before the interpellations in Congress, then Executive Secretary Ermita publicly confirmed the
inadequacies of Proclamation No. 1959:

We’ll have to get the report from the field from the AFP and PNP that the conditions that prompted the
President to issue the proclamation, have improved, and therefore, the threat of further lawlessness and
probability of rebellion is already down.59 (Emphasis supplied)

820
Significantly, at a press conference, then Secretary of Justice Agnes Devanadera declared, "We noticed
and observed there was a rebellion in the offing." In another press briefing, Devanadera stated that
"rebellion which does not necessarily involve a physical takeover by armed elements as argued by some
critics of the President’s order, was "looming in Maguindanao."60 In short, the Department of Justice
Secretary, who is the principal legal officer of the Arroyo administration, publicly admitted that there was
only a "looming" rebellion, a "rebellion in the offing," in Maguindanao.

Likewise, in a press conference, "the AFP Chief of Staff claimed that armed groups, numbering between
40 to 400 men and spread out in the province, planned to prevent the arrest of members of the Ampatuan
family, the prime suspects in the Maguindanao massacre. He stated, "Based on the reports we received,
there were a lot of groupings of armed groups in different places. We also received reports that they have
plans to undertake hostile action if ever government officials, the Ampatuans particularly, were taken in
custody. We felt this was very imminent threat, that’s why we recommended this proclamation."61

Then Defense Secretary Norberto Gonzales was quoted as stating that the "recommendation to declare
martial law in Maguindanao is a sensitive matter that needs to be studied."62 In an interview, Gonzales
said, "titingnan natin (we will see) how the situation develops there."63 He further stated, "As of now, I
think whatever the government is doing so far is really effective. We will wait for the results of the work
of Secretary Devanadera of Justice and also Secretary Puno of DILG. So, so far maganda naman yun takbo
ng ating operation doon."64 Gonzales added, "Yung tungkol sa martial law, alam mo sensitive na bagay
yan kaya pag-aaralan natin."65

The admissions and public statements made by members of the Cabinet, who are the President’s alter
egos, as well as the public assessments made by the highest ranking military officials, clearly demonstrate
that instead of being anchored on the existence of an actual rebellion, Proclamation No. 1959 was based
on a mere threat, or at best an imminent threat of rebellion, or a rebellion "in the offing."66 This
undeniably runs counter to the letter and intent of the Constitution. A looming rebellion is analogous to
imminent danger of rebellion, which was deliberately eliminated by the framers of the 1987 Constitution
as a ground for the declaration of martial law precisely to avoid a repetition of the misguided and
oppressive martial law imposed by former President Marcos.

There is absolutely nothing which shows that the Ampatuans and their armed followers, at any point in
time, intended to overthrow the government. On the contrary, the Ampatuans were publicly known as
very close political allies of President Arroyo. There is not a single instance where the Ampatuans
denounced, expressly or impliedly, the government, or attempted to remove allegiance to the
government or its laws or to deprive the President or Congress of any of their powers. Based on the
records, what the government clearly established, among others, were (1) the existence of the
Ampatuans’ private army; and (2) the Ampatuans’ vast collection of high powered firearms and

821
ammunitions.

These shocking discoveries, however, do not amount to rebellion as defined in Article 134 of the Revised
Penal Code. Based on the statements made by ranking government and military officials, and as clearly
found by the RTC-Quezon City in Criminal Case No. Q-10-162667 and affirmed by the Court of Appeals,
there was no public uprising and taking arms against the government for the purpose of removing from
the allegiance to the government or its laws the territory of the Philippines or any part thereof, or
depriving the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives. The
Ampatuans’ amassing of weaponry, including their collection of armored cars, tanks and patrol cars,
merely highlights this political clan’s unbelievably excessive power and influence under the Arroyo
administration.

To repeat, only in case of actual invasion or rebellion, when public safety requires it, may the President
declare martial law or suspend the writ. In declaring martial law and suspending the writ in Maguindanao
in the absence of an actual rebellion, President Arroyo indisputably violated the explicit provisions of
Section 18, Article VII of the Constitution.

Conclusion

Thirty-seven years after President Marcos’ Proclamation No. 1081, President Arroyo issued Proclamation
No. 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in the province
of Maguindanao, except in MILF identified areas. President Marcos’ martial law, justified to counteract
the Communist insurgency in the country,67 turned out to be a vehicle to establish a one-man
authoritarian rule in the country. Expectedly, President Arroyo’s Proclamation No. 1959 refreshed the
nation’s bitter memories of the tyranny during the Martial Law regime of President Marcos, and sparked
the public’s vigilance to prevent a possible recurrence of that horrible past.

In issuing Proclamation No. 1959, President Arroyo exercised the most awesome and powerful among her
graduated Commander-in-Chief powers to suppress a supposed rebellion in Maguindanao, following the
massacre of 57 civilians in the worst election-related violence in the country’s history. Since then, the
government branded the Ampatuans, the alleged masterminds of the massacre, as rebels orchestrating
the overthrow of the Arroyo administration. However, the events before, during, and after the massacre
negate the existence of an armed uprising aimed at bringing down the government, but rather point to a
surfeit of impunity and abuse of power of a political clan closely allied with the Arroyo administration. In
short, Proclamation No. 1959 was issued without an actual rebellion justifying the same.

Apparently, President Arroyo resorted to martial law and suspension of the writ, not to quell a purported
rebellion because there was absolutely none, but to show her indignation over the gruesome massacre

822
and her swift response in addressing the difficult situation involving her close political allies. She was
reported to be "under pressure to deliver, amid rising public outrage and international condemnation of
the massacre."68 However, mounting pressure to bring the murderers to justice, without any invasion or
rebellion in Maguindanao, does not warrant the imposition of martial law or suspension of the writ.
Rather, what the nation expects, and what the victims and their families truly deserve, is the speedy and
credible investigation and prosecution, and eventually the conviction, of the merciless killers.

In sum, Proclamation No. 1959 was anchored on a non-existent rebellion. Based on the events before,
during and after the Maguindanao massacre, there was obviously no rebellion justifying the declaration
of martial law and suspension of the writ. The discovery of the Ampatuans’ private army and massive
weaponry does not establish an armed public uprising aimed at overthrowing the government. Neither
do the closure of government offices and the reluctance of the local government officials and employees
to report for work indicate a rebellion.

The Constitution is clear. Only in case of actual invasion or rebellion, when public safety requires it, can a
state of martial law be declared or the privilege of the writ of habeas corpus be suspended. Proclamation
No. 1959 cannot be justified on the basis of a threatened, imminent, or looming rebellion, which ground
was intentionally deleted by the framers of the 1987 Constitution. Considering the non-existence of an
actual rebellion in Maguindanao, Proclamation No. 1959 is unconstitutional for lack of factual basis as
required under Section 18, Article VII of the Constitution for the declaration of martial law and suspension
of the privilege of the writ of habeas corpus.

Accordingly, I vote to GRANT the petitions and DECLARE Proclamation No. 1959 UNCONSTITUTIONAL for
failure to comply with Section 18, Article VII of the Constitution.

ANTONIO T. CARPIO

Associate Justice

Footnotes

1 Presidential Adviser for Mindanao Jesus Dureza’s statement reported in Philippine Daily Inquirer on 23
November 2009 (http://newsinfo.inquirer.net/breakingnews/nation/view/20091123-237934/Wife-of-
gubernatorial-bet-35-killed-in-Maguindanao [accessed on 4 November 2011], Wife of gubernatorial bet,
35 killed in Maguindanao Palace adviser calls for state of emergency) and in Philippine Star on 24
November 2009 (http://www.philstar.com/article.aspx?articleid=526314 [accessed on 4 November 2011
;Maguindanaomassacre).

823
The mass murder of the journalists was tagged "as the darkest point of democracy and free press in this
recent time." (Statement of NUJP Cebu Chapter President Rico Lucena reported in philstar.com with title
Maguindanao death toll now 46: Emergency rule in two provinces
(http://www.philstar.com/article.aspx?articleid=526616 [accessed on 4 November 2011 ).

The massacre was considered "one of the deadliest single events for the press in memory" and the
Philippines the world’s worst place to be a journalist, according to international press freedom watchdog
Committee to Protect Journalists (CPJ). (http://www.gmanews.tv/story/177821/the-ampatuan-
massacre-a-map-and-timeline [accessed on 4 November 2011])

2 Fifty-five of the casualties were identified as follows:

Bai Genelyn T. Mangudadatu Wife of Mangudadatu

Bai Eden Mangudadatu Sister/Vice Mayor, Mangudadatu, Maguindanao

Pinky Balaiman Cousin of Mangudadatu

Mamotavia Mangudadatu Aunt

Bai Farida Mangudadatu Youngest sister

Rowena Ante Mangudadatu Relative

Faridah Sabdula Sister

Soraida Vernan Cousin

Raida Sapalon Abdul Cousin

Rahima Puto Palawan Relative

Lailan "Ella" Balayman Relative

Walida Ali Kalim Relative

Atty. Concepcion Brizuela Lawyer

Atty. Cynthia Oquendo Ogano Lawyer

Cataleno Oquendo Father of Atty. Cynthia Oquendo

Marife Montano Saksi News, Gensan

Alejandro Bong Reblando Manila Bulletin, Gensan

Mc Delbert "Mac Mac" Areola UNTV Gensan

824
Rey Marisco Periodico Ini, Koronadal City

Bienvenido Jun Lagarta Prontierra News, Koronadal City

Napoleon Salaysay Mindanao Gazette

Eugene Depillano UNTV Gen San

Rosell Morales News Focus

Arturo Betia Periodico Ini, Gen San

Noel Decena Periodico Ini

John Caniba Periodico Ini

Junpee Gatchalian DXGO, Davao City

Victor Nunez UNTV Gen San

Andres Teodoro Central Mindanao Inquirer

Romeo Capelo Midland Review, Tacurong City

Joy Duhay Gold Star Daily

Ronnie Perante Gold Star Daily, Koronadal City

Benjie Adolfo Gold Star Daily, Koronadal City

Ian Subang Socsargen Today, Gen San

Joel Parcon Prontiera News, Koronadal City

Robello Bataluna Gold Star Daily, Koronadal City

Lindo Lipugan Mindanao Daily Gazette, Davao City

Ernesto Maravilla Bombo Radyo, Koronadal City

Henry Araneta Radio DZRH, Gen San

Fernando Razon Periodico Ini, Gen San

Hannibal Cachuela Punto News, Koronadal City

Lea Dalmacio Socsargen News, Gensan

Marites Cablitas News Focus, Gensan

Gina Dela Cruz Saksi News, Gensan

Anthony Ridao Government employee

Mariam Calimbol Civilian

Norton "Sidic" Edza Driver

825
Jephon C. Cadagdagon Civilian

Abdillah Ayada Driver

Joselito Evardo Civilian

Cecille Lechonsito Civilian

Wilhelm Palabrica Government Employee

Mercy Palabrica Government Employee

Daryll Vincent Delos Reyes Government Employee

Eduardo "Nonie" Lechonsito Government Employee

3 Rollo (G.R. No. 190293), pp. 105-109.

4 Id. at 185.

5 Should be Republic Act No. 6968, which is "An Act Punishing the Crime of Coup D’état by Amending
Articles 134, 135 and 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen,
Otherwise Known as the Revised Penal Code, and for Other Purposes." Republic Act No. 6986 is titled "An
Act Establishing a High School in Barangay Dulop, Municipality of Dumingag, Province of Zamboanga Del
Sur, to be Known as the Dulop High School, and Appropriating Funds Therefor."

6 Rollo (G.R. No. 190293), pp. 186-187.

7 Id. at 163-164, 173-177, 182.

8 Rollo (G.R. No. 190293), pp. 190-191.

9 Rollo (G..R. No. 190293), pp. 83-84; rollo (G.R. No. 190356), p. 55.

10 Rollo (G.R. No. 190293), p. 407.

11 The accused are: Datu Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan,
Datu Anwar Ampatuan, and Datu Sajid Islam Uy Ampatuan, as persons who allegedly promoted,
maintained or headed the rebellion; and Kusain Akmad Sakilan, Jovel Vista Lopez, Rommy Gimba Mamay,

826
Sammy Duyo Villanueva, Ibrahim Tukya Abdulkadir, Samil Manalo Mindo, Goldo B. Ampatuan, Amaikugao
Obab Dalgan, Billy Cabaya Gabriel, Jr., Abdulla Kaliangat Ampatuan, Moneb Smair Ibrahim, Umpa Ugka
Yarka, Manding Abdulkadir, Dekay Idra Ulama, Kapid Gabriel Cabay, Koka Batong Managilid, Sammy
Ganda Macabuat, Duca Lendungan Amban, Akmad Abdullah Ulilisen and several John Does, as
participants or the persons executing the commands of others in a rebellion or insurrection. (RTC-Quezon
City Order dated 26 March 2010, pp. 3-4).

12 RTC-Quezon City Order dated 26 March 2010, p. 4.

13 RTC-Quezon City Order dated 26 March 2010, pp. 10-13, 15-16, 18. Penned by Presiding Judge Vivencio
S. Baclig.

14 Under Rule 65 of the 1997 Rules of Procedure. Docketed as CA-G.R. SP No. 115168.

15 Penned by Associate Justice Elihu A. Ybañez, and concurred in by Associate Justices Fernanda Lampas
Peralta and Francisco P. Acosta.

16 SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 507 (2004), citing Integrated Bar of the
Philippines v. Zamora, 392 Phil. 618 (2000).

17 Bernas, The Intent of the 1986 Constitution Writers, 1995 Edition, p. 474.

18 David v. Arroyo, 522 Phil. 705, 757-759 (2006). See Chavez v. Public Estates Authority, 433 Phil. 506
(2002), Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623 (2000).

19 Lim v. Executive Secretary, 430 Phil. 555, 570-571 (2002) citing Bagong Alyansang Makabayan v.
Zamora, supra.

20 David v. Arroyo, supra note 18 at 753.

21 Id. at 753.

827
22 Id. at 754.

23 Id., citing Province of Batangas v. Romulo, 473 Phil. 806 (2004).

24 Id., citing Lacson v. Perez, 410 Phil. 78 (2001).

25 Id., citing Province of Batangas v. Romulo, supra.

26 Id., citing Albaña v. Commission on Elections, 478 Phil. 941 (2004); Acop v. Guingona, Jr., 433 Phil. 62
(2002); SANLAKAS v. Executive Secretary Reyes, supra note 16.

27 G.R. Nos. 183591, 183752, 183893, 183951, 183962, 14 October 2008, 568 SCRA 402.

28 Id.

29 Rollo (G.R. No. 190293), p. 508; Brief of Amicus Curiae Father Joaquin Bernas, S.J.

30 Retired Chief Justice Panganiban called this a historic moment and reminded the Court of its duty to
uphold the Constitution. He writes:

The Court faces a historic moment. It cannot cower or cop-out or hide behind legalisms. Worse, in a false
sense of gratitude, it should not invent legal excuses to justify or cover plainly unconstitutional acts. Rare
is the opportunity for greatness. Let the Court not squander the moment. Let it perform its duty
forthrightly and uphold the Constitution.

(http://opinion.inquirer.net/inquireropinion/columns/view/20091220-243027/Uphold-the-Constitution
[accessed on 4 November 2011], With Due Respect: Uphold the Constitution)

31 Rollo (G.R. No. 190293), p. 509; Brief of Amicus Curiae Father Joaquin Bernas, S.J.

32 An Act Punishing the Crime of Coup D’état by Amending Articles 134, 135 And 136 of Chapter One,

828
Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as The Revised Penal
Code, and for Other Purposes.

33 Rollo (G.R. No. 190293), p. 138.

34 Id. at 493, Amicus Memorandum of Justice Vicente V. Mendoza.

35 See retired Chief Justice Puno’s separate concurring opinion in United Pepsi-Cola Supervisory Union v.
Judge Laguesma, 351 Phil. 244, 292 (1998), citing Cooley, Treatise on Constitutional Limitations, Vol. 1,
pp. 142-143 [1927]; also cited in Willoughby, The Constitutional Law of the United States, Sec. 32, pp. 54-
55, Vol. 1 [1929].

36 Supra note 16.

37 Id. at 520. The Court stated that "[a] declaration of a state of rebellion is an utter superfluity. At most,
it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent
or suppress it."

38 See Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007, 523 SCRA 318, 336.

39 Rollo (G.R. No. 190293), p. 512, Brief of Amicus Curiae Father Joaquin Bernas, S.J.

40 Manalo v. Roldan-Confesor, G.R. No. 102358, 19 November 1992, 215 SCRA 808, 819. The Court held
therein:

Clear and convincing proof is "x x x more than mere preponderance, but not to extent of such certainty
as is required beyond reasonable doubt as in criminal cases x x x" while substantial evidence "x x x consists
of more than a mere scintilla of evidence but may be somewhat less than a preponderance x x x"
Consequently, in the hierarchy of evidentiary values, We find proof beyond reasonable doubt at the
highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial
evidence, in that order. (Citations omitted)

41 Section 1, Rule 133 of the Rules of Court provides:

829
SECTION 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of
proof must establish his case by a preponderance of evidence. In determining where the preponderance
or superior weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same may legitimately appear upon the trial. The court may also consider
the number of witnesses, though the preponderance is not necessarily with the greater number.

42 Raymundo v. Lunaria, G.R. No. 171036, 17 October 2008, 569 SCRA 526.

43 Section 5, Rule 133 of the Rules of Court provides:

SECTION 5. Substantial evidence. ‒ In cases filed before administrative or quasi-judicial bodies, a fact may
be deemed established if it is supported by substantial evidence, or that amount of relevant evidence
which a reasonable mind might accept as adequate to justify a conclusion.

44 Santos v. Orda, Jr., G.R. No. 189402, 6 May 2010, 620 SCRA 375, 384.

45 Viudez II v. Court of Appeals, G.R. No. 152889, 5 June 2009, 588 SCRA 345, 357.

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

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

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

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

830
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with
section 7 of Rule 112.

In addition, jurisprudence tells us that in the following instances, a warrantless search and seizure is valid.

(1) search incidental to a lawful arrest,

(2) search of moving vehicles,

(3) seizure in plain view,

(4) customs search, and

(5) waiver by the accused themselves of their right against unreasonable search and seizure.

See Manalili v. Court of Appeals, 345 Phil. 632, 645-646 (1997), citing People v. Lacerna, 344 Phil. 100
(1997).

Stop-and-frisk is also another exception to the general rule against a search without a warrant (Posadas
v. Court of Appeals, G.R. No. 89139, 2 August 1990, 188 SCRA 288, 292-293, cited in Manalili).

47 160 Phil. 906, 909 (1975); citations omitted.

48 243 Phil. 735 (1988).

49 Id. at 743-745, 748-749.

50 Id. at 497, Brief of Amicus Curiae Retired Associate Justice Vicente V. Mendoza.

831
51 Id. at 523, Brief of Amicus Curiae Father Joaquin Bernas, S.J.

52 Id. at 524, Brief of Amicus Curiae Father Joaquin Bernas, S.J.

53 See Senate P.S. Resolution No. 1522.

54 Bernas, The Intent of the 1986 Constitution Writers, 1995 Edition, p. 456.

55 SANLAKAS v. Executive Secretary, supra note 16. See Section 15, Article III of the 1987 Constitution. In
Velasco v. Court of Appeals, 315 Phil. 757 (1995), the Court declared that the privilege of the writ of habeas
corpus cannot be suspended except in cases of invasion or rebellion when the public safety requires it.

56 Rollo (G.R. No. 190293), pp. 163-164, 173-177, 182.

57 Transcript of Plenary Proceedings, Joint Session of the Congress of the Republic of the Philippines, 9
December 2009. See also "Ermita: ML proclaimed without actual rebellion," The Philippine Star, 11
December 2009 (http://www.philstar.com/Article.aspx?articleId=531416&publicationSubCategoryId=63
[accessed on 4 November 2011], where the following report appeared:

Executive Secretary Eduardo Ermita admitted Wednesday night that President Arroyo proclaimed martial
law in Maguindanao without an "actual" rebellion taking place in the province as required by the
Constitution.

But in response to questions raised by Albay Rep. Edcel Lagman, Ermita pointed to the presence of armed
groups supporting the Ampatuan family that were preventing the authorities from enforcing the law,
which, he added, was frustrating the ends of justice.

Ermita said the government considered the "presence" or "massing" of the Ampatuans’ armed followers
as "rebellion," one of only two grounds under the Constitution, aside from invasion, for the imposition of
martial law.

Ermita though conceded there was no actual rebellion taking place, in the sense of people taking up arms

832
to withdraw allegiance from the central government or prevent it from enforcing the law.

Lagman said that Ermita’s answers to his questions and Justice Secretary Agnes Devanadera’s statement
that there was rebellion in Maguindanao was only "looming" prove that Mrs. Arroyo received "bad legal
advice" in imposing martial rule in the province.

"The President has enough powers under the commander-in-chief provision of the Constitution to quell a
‘looming’ rebellion or neutralize the ‘presence’ or ‘massing’ of armed loyalists of the Ampatuans. She is
authorized to call on the Armed Forces to accomplish that objective," Lagman said.

Lagman pointed out the absence of rebellion in Maguindanao as defined under the Revised Penal Code.

"What happened there was lawlessness. It was just a partisan conflict that did not require the imposition
of martial law," he said.

58 Transcript of Plenary Proceedings, Joint Session of the Congress of the Republic of the Philippines, 9
December 2009.

59 Quoted in the Petition in G.R. No. 190307, p. 15, citing http://www.abs-

cbnnews.com/nation/12/04/09/arroyo-orders-martial-law-maguindanao [accessed on 10 November
2011 , Arroyo proclaims martial law in Maguindanao.

60 http://www.philstar.com/Article.aspx?articleid=529869 [accessed on 4 November 2011], DOJ:

Rebellion was looming.

61 Mantawil Petition (G.R. No. 190356), pp. 8-9.

62 http://www.mb.com.ph/node/231907/martial-law-idea-need [accessed on 4 November 2011],

Martial law idea needs study — Gonzales.

63 Id.

833
64 Id.

65 Id.

66 http://newsinfo.inquirer.net/breakingnews/nation/view/20091205-240273/A-rebellion-was-in-the-
offingjustice-chief [accessed on 4 November 2011], ‘A rebellion was in the offing’—justice chief.

67 Proclamation No. 1081 (PROCLAIMING A STATE OF MARTIAL LAW IN THE PHILIPPINES), 21 September
1972.

68 http://www.time.com/time/world/article/0,8599,1943191,00.html [accessed on 4 November 2011],

Behind the Philippines’ Maguindanao Massacre, by Alastair McIndoe.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

VELASCO, JR., J.:

The martial law era has left the country with harrowing memories of a dark past, thus invoking passionate
sentiments from the people and bringing forth remarkable vigilance as a lesson learned, and only rightfully
so. Nonetheless, legal discourse must be made within bounds, as must always be the case in a civilized
society governed by the rule of law and not of men. It is on the basis of the foregoing precept that I am
constrained to register my dissent in the instant case.

As can be gathered from the ponencia, the controversy in the instant case revolves around the issuance
by then President Gloria Macapagal-Arroyo (President Arroyo) of Proclamation No. 1959,1 which declared
a state of martial law and suspended the privilege of the writ of habeas corpus in the province of
Maguindanao, except for certain identified areas of the Moro Islamic Liberation Front.

To recall, the issuance of Proclamation No. 1959 was precipitated by the chilling and loathsome killing, on
November 23, 2009, of 57 innocent civilians, including the wife of then Buluan Vice-Mayor Esmail "Toto"

834
Mangudadatu (Mangudadatu), who was supposed to file the latter’s certificate of candidacy for Governor
of Maguindanao with the Provincial Office of the Commission on Elections in Shariff Aguak, accompanied
by Mangudadatu’s relatives, lawyers and members of the press, among others. The victims included five
others who only happened to be travelling on the same highway traversed by the Mangudadatu convoy.

As a consequence of the detestable killings tagged by media as the "Maguindanao massacre," President
Arroyo immediately issued Proclamation No. 19462 on the following day, November 24, 2009, by which a
state of emergency was declared in the provinces of Maguindanao and Sultan Kudarat, and in the City of
Cotabato, "to prevent and suppress the occurrence of similar other incidents of lawless violence in Central
Mindanao." This was followed with the issuance of the assailed Proclamation No. 1959 on December 4,
2009.

Subsequently, on December 6, 2009, President Arroyo submitted her Report3 to Congress in compliance
with Section 18, Article VII of the 1987 Constitution.

Meanwhile, the instant petitions were filed challenging the constitutionality of Proclamation No. 1959.

Also consonant with Sec. 18, Art. VII of the 1987 Constitution, Congress convened in joint session on
December 9, 2009.

Eventually, on December 12, 2009, President Arroyo lifted martial law and restored the privilege of the
writ of habeas corpus in Maguindanao with the issuance of Proclamation No. 1963.4

Justiciability of the instant petitions

In the majority opinion, the Court declined to rule on the constitutionality of Proclamation No. 1959,
racionating that "given the prompt lifting of the proclamation before Congress could review it and before
any serious question affecting the rights and liberties of Maguindanao’s inhabitants could arise, the Court
deems any review of its constitutionality the equivalent of beating a dead horse."

It is my view that, despite the lifting of the martial law and restoration of the privilege of the writ, the
Court must take the bull by the horn to guide, explain and elucidate to the executive branch, the legislative
branch, the bar, and more importantly the public on the parameters of a declaration of martial law.

835
Indeed, it is a well-settled rule that this Court may only adjudicate actual and current controversies.5 This
is because the Court is "not empowered to decide moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the result as to the thing in issue in the case before it."6
Nonetheless, this "moot and academic" rule admits of exceptions. As We wrote in David v. Arroyo:

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount public interest
is involved; third, when constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.7
(Emphasis supplied.)

All the aforementioned exceptions are present in this case. First, in the instant petitions, it was alleged
that the issuance of Proclamation No. 1959 is violative of the Constitution. Second, it is indubitable that
the issues raised affect the public’s interest as they may have an unsettling effect on the fundamental
rights of the people. Third, the Court has the duty to formulate controlling principles concerning issues
which involve the declaration of martial law and suspension of the privilege of the writ of habeas corpus
to guide the bench, the bar, and the public. And fourth, the assailed proclamation is capable of repetition
yet evading review. Considerably, the instant petitions are subject to judicial review.

While I disagree with the majority, I wish, however, to take exception to certain suppositions and
discourse made in the dissent of Justice Carpio. In particular, I refer to his discussion on hypothetical
situations concerning the simultaneous exercise of the power to review by this Court and by the Congress,
as well as to the proposition that "[i]n declaring martial law and suspending the writ in Maguindanao in
the absence of an actual rebellion, President Arroyo indisputably violated the explicit provisions of Section
18, Article VII of the Constitution."

Simultaneous exercise by the Court and the Congress

of their constitutional power to review

One of the matters traversed by the dissent of Justice Carpio is "[i]f the constitutional power of this Court
to review the factual basis of the declaration of martial law or suspension of the writ can be exercised
simultaneously with the constitutional power of the Congress to revoke the declaration of martial law or
suspension of the writ, and if the decision of this Court conflicts with the decision of Congress, which
decision shall prevail[?]"8

In addressing this issue, Justice Carpio, in his dissent, considered three scenarios, to wit:

836
First, the President’s martial law declaration or suspension of the writ is questioned in the Supreme Court
without Congress acting on the same. Such a situation generates no conflict between the Supreme Court
and Congress. There is no question that the Supreme Court can annul such declaration or suspension if it
lacks factual basis. Congress, whose only power under Section 18, Article VII of the Constitution is to
revoke the initial declaration or suspension on any ground, is left with nothing to revoke if the Court has
already annulled the declaration.

Second, Congress decides first to revoke the martial law declaration or suspension of the writ. Since the
Constitution does not limit the grounds for congressional revocation, Congress can revoke the declaration
or suspension for policy reasons, or plainly for being insignificant, as for instance it involves only one
barangay rebelling, or if it finds no actual rebellion. In this case, the Supreme Court is left with nothing to
act on as the revocation by Congress takes effect immediately. The Supreme Court must respect the
revocation by Congress even if the Court believes a rebellion exists because Congress has the unlimited
power to revoke the declaration or suspension.

Third, the Supreme Court decides first and rules that there is factual basis for the declaration of martial
law or suspension of the writ. In such a situation, Congress can still revoke the declaration or suspension
as its power under the Constitution is broader insofar as the declaration or suspension is concerned.
"Congress cannot be prevented by the Court from revoking the President’s decision because it is not for
the Court to determine what to do with an existing factual situation. x x x Congress has been given
unlimited power to revoke the President’s decision." In short, even if there is an actual rebellion, whether
affirmed or not by the Supreme Court, Congress has the power to revoke the President’s declaration or
suspension. (Italics in the original; citations omitted.)

With the exception of the first, the two other possible scenarios adverted to that may arise from the action
or inaction of the two co-equal branches of the government upon the declaration by the President of
martial law or suspension of the writ cannot be resolved in the present case. Otherwise, this Court would,
in effect, be making a ruling on a hypothetical state of facts which the Court is proscribed from doing.

As We have mentioned in Albay Electric Cooperative, Inc. v. Santelices, "[i]t is a rule almost unanimously
observed that courts of justice will take cognizance only of justiciable controversies wherein actual and
not merely hypothetical issues are involved."9 The reason behind this requisite is "to prevent the courts
through avoidance of premature adjudication from entangling themselves in abstract disagreements, and
for us to be satisfied that the case does not present a hypothetical injury or a claim contingent upon some
event that has not and indeed may never transpire."10

Further, the discussions made in Justice Carpio’s dissent, and curiously, even in the majority opinion itself,

837
fail to take into consideration the powers of review by this Court under its expanded jurisdiction as
conferred by Sec. 1, Art. VIII of the Constitution, "which includes the authority to determine whether grave
abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or
instrumentality of the government."11

In his dissent, Justice Carpio explicitly declares that "Congress has the unlimited power to revoke the
declaration or suspension." Similarly, the majority, in justifying the Court’s refusal to exercise its judicial
power of review, states that "[o]nly when Congress defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as its final rampart." Irresistibly implied in these
statements is that once Congress acts and reviews the declaration of martial law and suspension of the
privilege of the writ, this Court becomes powerless to make further inquiry on the sufficiency of the factual
basis of the proclamation in an appropriate proceeding filed by any citizen as mandated under Sec. 18,
Art. VII of the Constitution.

The categorical statements made in both the majority opinion and in Justice Carpio’s dissent minimize, if
not totally disregard, the power of this Court to pass upon the constitutionality of acts of Congress under
its expanded jurisdiction under the Constitution. The significance of this Court’s power to review under
its "expanded certiorari jurisdiction" was extensively discussed in Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc.:

As indicated in Angara v. Electoral Commission, judicial review is indeed an integral component of the
delicate system of checks and balances which, together with the corollary principle of separation of
powers, forms the bedrock of our republican form of government x x x.

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the
final arbiter, effectively checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the Constitution.

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of powers
among the three great departments of government through the definition and maintenance of the
boundaries of authority and control between them." To him, "[j]udicial review is the chief, indeed the
only, medium of participation – or instrument of intervention – of the judiciary in that balancing

838
operation."

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or
instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves,
for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of
this Court x x x.

xxxx

There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well within the power
and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the
Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v.
Angara, in seeking to nullify an act of the Philippine Senate on the ground that it contravened the
Constitution, it held that the petition raises a justiciable controversy and that when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, this Court declared null and void
a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of
a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of
the Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House representation in
the Commission on Appointments was based on proportional representation of the political parties as
provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, it held
that the act of the House of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco, it held that although under the
Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power
of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, it
ruled that confirmation by the National Assembly of the election of any member, irrespective of whether
his election is contested, is not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to
be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral
components of the calibrated system of independence and interdependence that insures that no branch
of government act beyond the powers assigned to it by the Constitution.12 (Emphasis in the original;
citations omitted.)

Indeed, the Court does not have the authority to pass upon the wisdom behind the acts of the Congress.
Nonetheless, the Court is not powerless to review the legality of the manner by which such acts have been

839
arrived at in order to determine whether Congress has transgressed the reasonable bounds of its
power.13 This is an obligation which the Court cannot, and should not, abdicate.

Moreover, by indicating that Congress, if it so decides to act, has an unlimited power to revoke the
declaration of a state of martial law or suspension of the privilege of the writ unfettered by this Court’s
power to review, We are treading on treacherous grounds by handing over such an unbridled discretion
to Congress. Such statement, to me, partakes of an obiter without precedential value, being unnecessary
to resolve the issues and arrive at a proper decision in the present case. This matter should instead be
addressed at the proper case and at the proper time.

President Arroyo’s alleged indisputable violation

of the explicit provisions of the Constitution

With due respect to Justice Carpio, I cannot join him in his contention that "President Arroyo indisputably
violated the explicit provisions of Section 18, Article VII of the Constitution" for declaring martial law and
suspending the writ in Maguindanao in the absence of an actual rebellion. The magnification is uncalled
for.

When We speak of "violation" in reference to a law, it pertains to an act of breaking or dishonoring the
law.14 The use of said word, coupled with the ascription of the term "indisputable," somehow implies
that an act was done intentionally or wilfully. At worst, its use can even be suggestive of bad faith on the
part of the doer.

In the case at bar, there is neither any allegation nor proof that President Arroyo acted in bad faith when
she declared martial law and suspended the writ of habeas corpus in Maguindanao. There was also no
showing that there was a deliberate or intentional attempt on the part of President Arroyo to break or
dishonor the Constitution by issuing the assailed proclamation. On the contrary, what is extant from the
records is that President Arroyo made such declaration and suspension on the basis of intelligence reports
that lawless elements have taken up arms and committed public uprising against the government and the
people of Maguindanao for the purpose of depriving the Chief Executive of her powers and prerogatives
to enforce the laws of the land and to maintain public order and safety, to the great damage, prejudice
and detriment of the people in Maguindanao and the nation as a whole.

President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of
the Philippines and the Philippine National Police, considering that the matter of the supposed armed
uprising was within their realm of competence, and that a state of emergency has also been declared in
Central Mindanao to prevent lawless violence similar to the "Maguindanao massacre," which may be an

840
indication that there is a threat to the public safety warranting a declaration of martial law or suspension
of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or
suspending the writ of habeas corpus. The Constitution, as couched, does not require precision in
establishing the fact of rebellion. The President is called to act as public safety requires.

The following excerpts from the Brief of Amicus Curiae of Fr. Joaquin Bernas, S.J. is illuminating:

From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion in
the Constitution which is not found in the meaning of the same word in Article 134 of the Penal Code. The
concern of the Penal Code, after all, is to punish acts of the past. But the concern of the Constitution is to
counter threat to public safety both in the present and in the future arising from present and past acts.
Such nuance, it is submitted, gives to the President a degree of flexibility for determining whether
rebellion constitutionally exists as basis for martial law even if facts cannot obviously satisfy the
requirements of the Penal Code whose concern is about past acts. To require that the President must first
convince herself that there can be proof beyond reasonable doubt of the existence of rebellion as defined
in the Penal Code and jurisprudence can severely restrict the President’s capacity to safeguard public
safety for the present and the future and can defeat the purpose of the Constitution.

What all these point to are that the twin requirements of "actual rebellion or invasion" and the demand
of public safety are inseparably entwined. But whether there exists a need to take action in favour of
public safety is a factual issue different in nature from trying to determine whether rebellion exists. The
need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through
the visual or tactile sense. Its existence can only be determined through the application of prudential
estimation of what the consequences might be of existing armed movements. Thus, in deciding whether
the President acted rightly or wrongly in finding that public safety called for the imposition of martial law,
the Court cannot avoid asking whether the President acted wisely and prudently and not in grave abuse
of discretion amounting to lack or excess of jurisdiction. Such decision involves the verification of factors
not as easily measurable as the demands of Article 134 of the Penal Code and can lead to a prudential
judgment in favour of the necessity of imposing martial law to ensure public safety even in the face of
uncertainty whether the Penal Code has been violated. This is the reason why courts in earlier
jurisprudence were reluctant to override the executive’s judgment.

In sum, since the President should not be bound to search for proof beyond reasonable doubt of the
existence of rebellion and since deciding whether public safety demands action is a prudential matter, the
function of the President is far from different from the function of a judge trying to decide whether to
convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different
from looking for rebellion under the Constitution.15

841
Significantly, the President has the discretion to make a declaration of martial law or suspension of the
writ of habeas corpus based on information or facts available or gathered by the President’s office. It
would be preposterous to impose upon the President to be physically present at the place where a threat
to public safety is alleged to exist as a condition to make such declaration or suspension.

In the present case, it should not escape the attention of the Court that President Arroyo complied with
the reportorial requirement in Sec. 18, Art. VII of the Constitution, which states that "within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress." Further, it appearing thereafter
that when President Arroyo subsequently received intelligence reports on the advisability of lifting martial
law or restoring the writ of habeas corpus in Maguindanao, she immediately issued the corresponding
proclamation.

To a certain extent, I conform to Justice Carpio’s dissent as to the unconstitutionality of Proclamation No.
1959. To my mind, however, it is one thing to declare a decree issued by the President as unconstitutional,
and it is another to pronounce that she indisputably violated the Constitution. Notably, the power to issue
the subject decree is expressly granted the President. There is also compliance with the report required
after the issuance of said decree. However, the issuance of the subject decree may not be sustained after
due consideration of the circumstances which may or may not support such decree.

This dissent fears that overbearing declarations may later create an unwarranted limitation on the power
of a President to respond to exigencies and requirements of public safety. We must recognize that as
society progresses, then so may the manner and means of endangering the very existence of our society
develop. This Court is fortunate for having the benefit of hindsight. This benefit may not be equally shared
by the President, who is tasked to act with a sense of urgency based on best judgment as facts develop
and events unfold. We may only be judges of the past. But history will be harsh on a President who is not
up to the challenge and declines, or worse, fails to act when so required.

I, therefore, vote to declare Proclamation No. 1959 unconstitutional, but as heretofore qualified.

PRESBITERO J. VELASCO, JR.

Associate Justice

EN BANC

G.R. No. 162230 April 28, 2010

842
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, EUGENIA M.
LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON,
RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M.
HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL, JUANITA M.
BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA
G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C.
DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ,
PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA
A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT,
TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B.
TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM,
CARIDAD L. TURLA, et al. In their capacity and as members of the "Malaya Lolas Organization", Petitioners,

vs.

THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in
these actions, exchanged full compensation of plaintiffs for a future peace. History has vindicated the
wisdom of that bargain. And while full compensation for plaintiffs' hardships, in the purely economic
sense, has been denied these former prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their posterity in a free society and in a more peaceful
world services the debt.1

There is a broad range of vitally important areas that must be regularly decided by the Executive
Department without either challenge or interference by the Judiciary. One such area involves the delicate
arena of foreign relations. It would be strange indeed if the courts and the executive spoke with different
voices in the realm of foreign policy. Precisely because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained of, we make no attempt to lay down general

843
guidelines covering other situations not involved here, and confine the opinion only to the very questions
necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the
issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the
Secretary of the Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ),
and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with
the Securities and Exchange Commission, established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the Second World War.ten.lihpwal

Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. Their communities were
bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they
were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of their
Japanese tormentors, the petitioners have spent their lives in misery, having endured physical injuries,
pain and disability, and mental and emotional suffering.2

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA,
and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who
ordered the establishment of the "comfort women" stations in the Philippines. However, officials of the
Executive Department declined to assist the petitioners, and took the position that the individual claims
of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the
Peace Treaty between the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave
abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the
crimes against humanity and war crimes committed against them; and (b) compel the respondents to
espouse their claims for official apology and other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international tribunals.

844
Petitioners’ arguments

Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of
Peace with Japan is void. They claim that the comfort women system established by Japan, and the brutal
rape and enslavement of petitioners constituted a crime against humanity,3 sexual slavery,4 and torture.5
They allege that the prohibition against these international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in breach of its legal obligation not to afford
impunity for crimes against humanity. Finally, petitioners assert that the Philippine government’s
acceptance of the "apologies" made by Japan as well as funds from the Asian Women’s Fund (AWF) were
contrary to international law.

Respondents’ Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt
with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.6

Article 14 of the Treaty of Peace7 provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering
caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently
sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and
suffering and at the present time meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of
the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by
Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for
direct military costs of occupation.

In addition, respondents argue that the apologies made by Japan8 have been satisfactory, and that Japan
had addressed the individual claims of the women through the atonement money paid by the Asian
Women’s Fund.1avvphi1

845
Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese
military forces captured the city of Nanking in China and began a "barbaric campaign of terror" known as
the Rape of Nanking, which included the rapes and murders of an estimated 20,000 to 80,000 Chinese
women, including young girls, pregnant mothers, and elderly women.9 Document1zzF24331552898

In reaction to international outcry over the incident, the Japanese government sought ways to end
international condemnation10 by establishing the "comfort women" system. Under this system, the
military could simultaneously appease soldiers' sexual appetites and contain soldiers' activities within a
regulated environment.11 Comfort stations would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of occupied territories.12

Daily life as a comfort woman was "unmitigated misery."13 The military forced victims into barracks-style
stations divided into tiny cubicles where they were forced to live, sleep, and have sex with as many 30
soldiers per day.14 The 30 minutes allotted for sexual relations with each soldier were 30-minute
increments of unimaginable horror for the women.15 Disease was rampant.16 Military doctors regularly
examined the women, but these checks were carried out to prevent the spread of venereal diseases; little
notice was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones inflicted
on the women by soldiers. Document1zzF48331552898

Fewer than 30% of the women survived the war.17 Their agony continued in having to suffer with the
residual physical, psychological, and emotional scars from their former lives. Some returned home and
were ostracized by their families. Some committed suicide. Others, out of shame, never returned home.18

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal responsibility and pay
compensatory damages for the comfort women system were through a series of lawsuits, discussion at
the United Nations (UN), resolutions by various nations, and the Women’s International Criminal Tribunal.
The Japanese government, in turn, responded through a series of public apologies and the creation of the
AWF.19

Lawsuits

846
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort
women against the Japanese government. The Tokyo District Court however dismissed their case.20 Other
suits followed,21 but the Japanese government has, thus far, successfully caused the dismissal of every
case.22

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women
system brought their claims before the United States (US). On September 18, 2000, 15 comfort women
filed a class action lawsuit in the US District Court for the District of Columbia23 "seeking money damages
for [allegedly] having been subjected to sexual slavery and torture before and during World War II," in
violation of "both positive and customary international law." The case was filed pursuant to the Alien Tort
Claims Act ("ATCA"),24 which allowed the plaintiffs to sue the Japanese government in a US federal district
court.25 On October 4, 2001, the district court dismissed the lawsuit due to lack of jurisdiction over Japan,
stating that "[t]here is no question that this court is not the appropriate forum in which plaintiffs may
seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not enjoy sovereign
immunity, plaintiffs' claims are non-justiciable and must be dismissed."

The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.26 On appeal,
the US Supreme Court granted the women’s petition for writ of certiorari, vacated the judgment of the
District of Columbia Court of Appeals, and remanded the case.27 On remand, the Court of Appeals
affirmed its prior decision, noting that "much as we may feel for the plight of the appellants, the courts of
the US simply are not authorized to hear their case."28 The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted
a petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes
committed by Japan against Korean women and seeking reparations for former comfort women.29 The
UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's special
investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made the following recommendations:

A. At the national level

137. The Government of Japan should:

847
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the
Second World War was a violation of its obligations under international law and accept legal responsibility
for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery according to principles
outlined by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection
of Minorities on the right to restitution, compensation and rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A special administrative tribunal for this purpose should be set
up with a limited time-frame since many of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with regard to comfort stations
and other related activities of the Japanese Imperial Army during the Second World War;

(d) Make a public apology in writing to individual women who have come forward and can be
substantiated as women victims of Japanese military sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to reflect historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization
of comfort stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities, also presented a report to the Sub-Committee on June 22, 1998 entitled
Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed
Conflict. The report included an appendix entitled An Analysis of the Legal Liability of the Government of
Japan for 'Comfort Women Stations' established during the Second World War,30 which contained the
following findings:

68. The present report concludes that the Japanese Government remains liable for grave violations of
human rights and humanitarian law, violations that amount in their totality to crimes against humanity.
The Japanese Government’s arguments to the contrary, including arguments that seek to attack the
underlying humanitarian law prohibition of enslavement and rape, remain as unpersuasive today as they
were when they were first raised before the Nuremberg war crimes tribunal more than 50 years ago. In
addition, the Japanese Government’s argument that Japan has already settled all claims from the Second
World War through peace treaties and reparations agreements following the war remains equally
unpersuasive. This is due, in large part, to the failure until very recently of the Japanese Government to
admit the extent of the Japanese military’s direct involvement in the establishment and maintenance of

848
these rape centres. The Japanese Government’s silence on this point during the period in which peace
and reparations agreements between Japan and other Asian Governments were being negotiated
following the end of the war must, as a matter of law and justice, preclude Japan from relying today on
these peace treaties to extinguish liability in these cases.

69. The failure to settle these claims more than half a century after the cessation of hostilities is a
testament to the degree to which the lives of women continue to be undervalued. Sadly, this failure to
address crimes of a sexual nature committed on a massive scale during the Second World War has added
to the level of impunity with which similar crimes are committed today. The Government of Japan has
taken some steps to apologize and atone for the rape and enslavement of over 200,000 women and girls
who were brutalized in "comfort stations" during the Second World War. However, anything less than full
and unqualified acceptance by the Government of Japan of legal liability and the consequences that flow
from such liability is wholly inadequate. It must now fall to the Government of Japan to take the necessary
final steps to provide adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the reparations sought.

Women's International War Crimes

Tribunal

The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a
number of Asian women and human rights organizations, supported by an international coalition of non-
governmental organizations.31 First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to
"adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring
those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence
against women."

After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001,
finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape
and sexual slavery of women.32 It bears stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was
organized by private citizens.

Action by Individual Governments

849
On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor
representatives, introduced House Resolution 121 which called for Japanese action in light of the ongoing
struggle for closure by former comfort women. The Resolution was formally passed on July 30, 2007,33
and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan (1) should formally
acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its
Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort
women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through
the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status
of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in
his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and
trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should
educate current and future generations about this horrible crime while following the recommendations
of the international community with respect to the "comfort women."34

In December 2007, the European Parliament, the governing body of the European Union, drafted a
resolution similar to House Resolution 121.35 Entitled, "Justice for Comfort Women," the resolution
demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of
the legal obstacles preventing compensation; and (3) unabridged education of the past. The resolution
also stressed the urgency with which Japan should act on these issues, stating: "the right of individuals to
claim reparations against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized,
taking into account the age of the survivors."

The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan.
Canada's resolution demands the Japanese government to issue a formal apology, to admit that its
Imperial Military coerced or forced hundreds of thousands of women into sexual slavery, and to restore
references in Japanese textbooks to its war crimes.36 The Dutch parliament's resolution calls for the
Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei
Kono.

The Foreign Affairs Committee of the United Kingdom’s Parliament also produced a report in November,
2008 entitled, "Global Security: Japan and Korea" which concluded that Japan should acknowledge the
pain caused by the issue of comfort women in order to ensure cooperation between Japan and Korea.

Statements of Remorse made by representatives of the Japanese government

850
Various officials of the Government of Japan have issued the following public statements concerning the
comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime "comfort women" since
December 1991. I wish to announce the findings as a result of that study.

As a result of the study which indicates that comfort stations were operated in extensive areas for long
periods, it is apparent that there existed a great number of comfort women. Comfort stations were
operated in response to the request of the military authorities of the day. The then Japanese military was,
directly or indirectly, involved in the establishment and management of the comfort stations and the
transfer of comfort women. The recruitment of the comfort women was conducted mainly by private
recruiters who acted in response to the request of the military. The Government study has revealed that
in many cases they were recruited against their own will, through coaxing coercion, etc., and that, at
times, administrative/military personnel directly took part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.

As to the origin of those comfort women who were transferred to the war areas, excluding those from
Japan, those from the Korean Peninsula accounted for a large part. The Korean Peninsula was under
Japanese rule in those days, and their recruitment, transfer, control, etc., were conducted generally
against their will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of the day, that severely
injured the honor and dignity of many women. The Government of Japan would like to take this
opportunity once again to extend its sincere apologies and remorse to all those, irrespective of place of
origin, who suffered immeasurable pain and incurable physical and psychological wounds as comfort
women.

It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the
views of learned circles, how best we can express this sentiment.

We shall face squarely the historical facts as described above instead of evading them, and take them to
heart as lessons of history. We hereby reiterated our firm determination never to repeat the same mistake
by forever engraving such issues in our memories through the study and teaching of history.

851
As actions have been brought to court in Japan and interests have been shown in this issue outside Japan,
the Government of Japan shall continue to pay full attention to this matter, including private researched
related thereto.

b) Prime Minister Tomiichi Murayama’s Statement in 1994

On the issue of wartime "comfort women", which seriously stained the honor and dignity of many women,
I would like to take this opportunity once again to express my profound and sincere remorse and
apologies"

c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military authorities at that time, was
a grave affront to the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women
who endured immeasurable and painful experiences and suffered incurable physical and psychological
wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and
remorse, should face up squarely to its past history and accurately convey it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in
modern world history, and recognizing that Japan carried out such acts in the past and inflicted suffering
on the people of other countries, especially in Asia, the Members of this House hereby express deep
remorse. (Resolution of the House of Representatives adopted on June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have
been consistent. I will stand by the Kono Statement. This is our consistent position. Further, we have been

852
apologizing sincerely to those who suffered immeasurable pain and incurable psychological wounds as
comfort women. Former Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued
letters to the comfort women. I would like to be clear that I carry the same feeling. This has not changed
even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).

I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement
by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget
Committee, the House of Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my
apologies for the extremely agonizing circumstances into which they were placed. (Excerpt from
Telephone Conference by Prime Minister Abe to President George W. Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who were taken as wartime
comfort women. As a human being, I would like to express my sympathies, and also as prime minister of
Japan I need to apologize to them. My administration has been saying all along that we continue to stand
by the Kono Statement. We feel responsible for having forced these women to go through that hardship
and pain as comfort women under the circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who
suffered extreme hardships as comfort women; and I expressed my apologies for the fact that they were
forced to endure such extreme and harsh conditions. Human rights are violated in many parts of the world
during the 20th Century; therefore we must work to make the 21st Century a wonderful century in which
no human rights are violated. And the Government of Japan and I wish to make significant contributions
to that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after the summit
meeting at Camp David between Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the government's concrete
attempt to address its moral responsibility by offering monetary compensation to victims of the comfort
women system.37 The purpose of the AWF was to show atonement of the Japanese people through
expressions of apology and remorse to the former wartime comfort women, to restore their honor, and
to demonstrate Japan’s strong respect for women.38

The AWF announced three programs for former comfort women who applied for assistance: (1) an

853
atonement fund paying ¥2 million (approximately $20,000) to each woman; (2) medical and welfare
support programs, paying ¥2.5-3 million ($25,000-$30,000) for each woman; and (3) a letter of apology
from the Japanese Prime Minister to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of March 2006, the AWF provided ¥700
million (approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; ¥380
million (approximately $3.8 million) in Indonesia; and ¥242 million (approximately $2.4 million) in the
Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding
for medical and welfare support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the Executive Department committed
grave abuse of discretion in not espousing petitioners’ claims for official apology and other forms of
reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine
whether to espouse petitioners’ claims against Japan.

Baker v. Carr39 remains the starting point for analysis under the political question doctrine. There the US
Supreme Court explained that:

x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments on question.

In Tañada v. Cuenco,40 we held that political questions refer "to those questions which, under the

854
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure."

Certain types of cases often have been found to present political questions.41 One such category involves
questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative--'the political'--departments
of the government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."42 The US Supreme Court has further cautioned that decisions
relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only
by those directly responsible to the people whose welfare they advance or imperil. They are decisions of
a kind for which the Judiciary has neither aptitude, facilities nor responsibility.43

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements.44 However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts
to question. Neither could petitioners herein assail the said determination by the Executive Department
via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with foreign
relations."

It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps
serious embarrassment -- is to be avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the international field must often
accord to the President a degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the form of diplomatic, consular and other
officials. x x x

855
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary46 and
Pimentel v. Executive Secretary;47 its overreaching principle was, perhaps, best articulated in (now Chief)
Justice Puno’s dissent in Secretary of Justice v. Lantion:48

x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with decisiveness.
x x x It is also the President who possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under
less stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our
country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For us to overturn the Executive Department’s determination
would mean an assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was without authority
to negotiate the Treaty of Peace with Japan. And it is equally true that, since time immemorial, when
negotiating peace accords and settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and
as counters, `chips', in international bargaining. Settlement agreements have lumped, or linked, claims
deriving from private debts with others that were intergovernmental in origin, and concessions in regard
to one category of claims might be set off against concessions in the other, or against larger political
considerations unrelated to debts.49

Indeed, except as an agreement might otherwise provide, international settlements generally wipe out
the underlying private claims, thereby terminating any recourse under domestic law. In Ware v. Hylton,50
a case brought by a British subject to recover a debt confiscated by the Commonwealth of Virginia during
the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded,

856
neither the matter in dispute, nor the conduct of either party, during the war, can ever be revived, or
brought into contest again. All violences, injuries, or damages sustained by the government, or people of
either, during the war, are buried in oblivion; and all those things are implied by the very treaty of peace;
and therefore not necessary to be expressed. Hence it follows, that the restitution of, or compensation
for, British property confiscated, or extinguished, during the war, by any of the United States, could only
be provided for by the treaty of peace; and if there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the British government, much less by her
subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly nothing new. For instance, in Dames
& Moore v. Regan,51 the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of one country against the
government of another country are "sources of friction" between the two sovereigns. United States v.
Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have
often entered into agreements settling the claims of their respective nationals. As one treatise writer puts
it, international agreements settling claims by nationals of one state against the government of another
"are established international practice reflecting traditional international theory." L. Henkin, Foreign
Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly
exercised its sovereign authority to settle the claims of its nationals against foreign countries. x x x Under
such agreements, the President has agreed to renounce or extinguish claims of United States nationals
against foreign governments in return for lump-sum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were encouraged by the United States claimants
themselves, since a claimant's only hope of obtaining any payment at all might lie in having his
Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that the "United
States has sometimes disposed of the claims of its citizens without their consent, or even without
consultation with them, usually without exclusive regard for their interests, as distinguished from those
of the nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations
Law of the United States § 213 (1965) (President "may waive or settle a claim against a foreign state x x x
[even] without the consent of the [injured] national"). It is clear that the practice of settling claims
continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the
complete atonement of the suffering caused by Japanese aggression during the war, not for the payment
of adequate reparations, but for security purposes. The treaty sought to prevent the spread of
communism in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese slave labor during the
war.52 In a consolidated case in the Northern District of California,53 the court dismissed the lawsuits

857
filed, relying on the 1951 peace treaty with Japan,54 because of the following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of the agreement was to
settle the reparations issue once and for all. As the statement of the chief United States negotiator, John
Foster Dulles, makes clear, it was well understood that leaving open the possibility of future claims would
be an unacceptable impediment to a lasting peace:

Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses
and suffering.

On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands
which are unable to produce the food its people need to live, or the raw materials they need to work. x x
x

The policy of the United States that Japanese liability for reparations should be sharply limited was
informed by the experience of six years of United States-led occupation of Japan. During the occupation
the Supreme Commander of the Allied Powers (SCAP) for the region, General Douglas MacArthur,
confiscated Japanese assets in conjunction with the task of managing the economic affairs of the
vanquished nation and with a view to reparations payments. It soon became clear that Japan's financial
condition would render any aggressive reparations plan an exercise in futility. Meanwhile, the importance
of a stable, democratic Japan as a bulwark to communism in the region increased. At the end of 1948,
MacArthur expressed the view that "[t]he use of reparations as a weapon to retard the reconstruction of
a viable economy in Japan should be combated with all possible means" and "recommended that the
reparations issue be settled finally and without delay."

That this policy was embodied in the treaty is clear not only from the negotiations history but also from
the Senate Foreign Relations Committee report recommending approval of the treaty by the Senate. The
committee noted, for example:

Obviously insistence upon the payment of reparations in any proportion commensurate with the claims
of the injured countries and their nationals would wreck Japan's economy, dissipate any credit that it may
possess at present, destroy the initiative of its people, and create misery and chaos in which the seeds of
discontent and communism would flourish. In short, [it] would be contrary to the basic purposes and
policy of x x x the United States x x x.

858
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle –
and particularly here, where such an extraordinary length of time has lapsed between the treaty’s
conclusion and our consideration – the Executive must be given ample discretion to assess the foreign
policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether
further steps are appropriate or necessary.

The Philippines is not under any international obligation to espouse petitioners’ claims.

In the international sphere, traditionally, the only means available for individuals to bring a claim within
the international legal system has been when the individual is able to persuade a government to bring a
claim on the individual’s behalf.55 Even then, it is not the individual’s rights that are being asserted, but
rather, the state’s own rights. Nowhere is this position more clearly reflected than in the dictum of the
Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law. The question, therefore, whether the present dispute originates
in an injury to a private interest, which in point of fact is the case in many international disputes, is
irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before
an international tribunal, in the eyes of the latter the State is sole claimant.56

Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the
absolute discretion of states, and the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of the particular claim.57 As clearly
stated by the ICJ in

Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that
the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their
rights are not adequately protected, they have no remedy in international law. All they can do is resort to
national law, if means are available, with a view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also
confer upon the national a right to demand the performance of that obligation, and clothe the right with

859
corresponding sanctions.1awwphi1 However, all these questions remain within the province of municipal
law and do not affect the position internationally.58 (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it
is granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of which
may be determined by considerations of a political or other nature, unrelated to the particular case.

The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this
traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in the State,"59
(ii) affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of
the State;60 and (iii) stress that the state "has the right to exercise diplomatic protection

on behalf of a national. It is under no duty or obligation to do so."61

It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on
his/her behalf when rights are injured.62 However, at present, there is no sufficient evidence to establish
a general international obligation for States to exercise diplomatic protection of their own nationals
abroad.63 Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a
direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment.641avvphi1

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as
legally prohibited under contemporary international law.65 However, petitioners take quite a theoretical
leap in claiming that these proscriptions automatically imply that that the Philippines is under a non-
derogable obligation to prosecute international crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty regime, or a directive by the Security Council,
there is no non-derogable duty to institute proceedings against Japan. Indeed, precisely because of states’
reluctance to directly prosecute claims against another state, recent developments support the modern
trend to empower individuals to directly participate in suits against perpetrators of international
crimes.66 Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the
practice of states does not yet support the present existence of an obligation to prosecute international
crimes.67 Of course a customary duty of prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to those who
commit crimes against humanity."68

860
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we
sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show
that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty
of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes
obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term
describing obligations owed by States towards the community of states as a whole. The concept was
recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By
their very nature, the former are the concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection; they are obligations erga
omnes.http://www.search.com/reference/Erga_omnes - _note-0#_note-0

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law … others are conferred by international
instruments of a universal or quasi-universal character.

The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a belief in the
emergence of a value-based international public order. However, as is so often the case, the reality is
neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its
full potential remains to be realized in practice.69

The term is closely connected with the international law concept of jus cogens. In international law, the
term "jus cogens" (literally, "compelling law") refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense
that they are mandatory, do not admit derogation, and can be modified only by general international
norms of equivalent authority.70

Early strains of the jus cogens doctrine have existed since the 1700s,71 but peremptory norms began to
attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article,
Forbidden Treaties in International Law.72 The recognition of jus cogens gained even more force in the
1950s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).73
Though there was a consensus that certain international norms had attained the status of jus cogens,74

861
the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963
that "there is not as yet any generally accepted criterion by which to identify a general rule of international
law as having the character of jus cogens."75 In a commentary accompanying the draft convention, the
ILC indicated that "the prudent course seems to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of international tribunals."76 Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core
of principles and rules.78

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the Japanese soldiers. We are also deeply concerned
that, in apparent contravention of fundamental principles of law, the petitioners appear to be without a
remedy to challenge those that have offended them before appropriate fora. Needless to say, our
government should take the lead in protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the Executive Department to take up the
petitioners’ cause. Ours is only the power to urge and exhort the Executive Department to take up
petitioners’ cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN
MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., EVALYN G.
URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO,
Petitioners,

vs.

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY

VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR.,
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF
THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.

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

862
G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M.

REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE,
GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT
TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE
FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO
LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND
CLEMENTE G. BAUTISTA, Petitioners,

vs.

DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN

AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED
FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J.
EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND
ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, Respondents.

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

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS
NATIONAL PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA
ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention,

RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.

DECISION

SERENO, J.:

The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.).

863
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of
jurisdiction when they entered into EDCA with the U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that petitioners lack standing to bring the suit. To
support the legality of their actions, respondents invoke the 1987 Constitution, treaties, and judicial
precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the
constitutional powers and roles of the President and the Senate in respect of the above issues. A more
detailed discussion of these powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN

RELATIONS, AND EDCA

A. The Prime Duty of the State and the Consolidation of Executive Power in the President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig ang
aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas,
pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito, magiging
makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng
Diyos.

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5

The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."6 While the vastness of the executive power that has been consolidated in the person of the
President cannot be expressed fully in one provision, the Constitution has stated the prime duty of the
government, of which the President is the head:

The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service.7 (Emphases supplied)

B. The duty to protect the territory and the citizens of the Philippines, the power to call upon the people
to defend the State, and the President as Commander-in-Chief

864
The duty to protect the State and its people must be carried out earnestly and effectively throughout the
whole territory of the Philippines in accordance with the constitutional provision on national territory.
Hence, the President of the Philippines, as the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters embraced therein and all other territories over
which it has sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial
domains; including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine
areas; and the waters around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions.8

To carry out this important duty, the President is equipped with authority over the Armed Forces of the
Philippines (AFP),9 which is the protector of the people and the state. The AFP's role is to secure the
sovereignty of the State and the integrity of the national territory.10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote
the general welfare.11

In recognition of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats12 and, in the same vein, ensure
that the country is adequately prepared for all national and local emergencies arising from natural and
man-made disasters.13

To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the AFP
to prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the privilege
of the writ of habeas corpus for a period exceeding 60 days, or place the Philippines or any part thereof
under martial law exceeding that same span. In the exercise of these powers, the President is also duty-
bound to submit a report to Congress, in person or in writing, within 48 hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus; and Congress may in turn
revoke the proclamation or suspension. The same provision provides for the Supreme Court's review of
the factual basis for the proclamation or suspension, as well as the promulgation of the decision within
30 days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of foreign relations.15 Since
every state has the capacity to interact with and engage in relations with other sovereign states,16 it is
but logical that every state must vest in an agent the authority to represent its interests to those other
sovereign states.

The conduct of foreign relations is full of complexities and consequences, sometimes with life and death

865
significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with decisiveness.
x x x It is also the President who possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under
less stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences.17

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive must
give paramount importance to the sovereignty of the nation, the integrity of its territory, its interest, and
the right of the sovereign Filipino people to self-determination.18 In specific provisions, the President's
power is also limited, or at least shared, as in Section 2 of Article II on the conduct of war; Sections 20 and
21 of Article VII on foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of
Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and
international agreements entered into prior to the Constitution and on the presence of foreign military
troops, bases, or facilities.

D. The relationship between the two major presidential functions and the role of the Senate

Clearly, the power to defend the State and to act as its representative in the international sphere inheres
in the person of the President. This power, however, does not crystallize into absolute discretion to craft
whatever instrument the Chief Executive so desires. As previously mentioned, the Senate has a role in
ensuring that treaties or international agreements the President enters into, as contemplated in Section
21 of Article VII of the Constitution, obtain the approval of two-thirds of its members.

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,19 except in instances wherein the President "may enter into international treaties or
agreements as the national welfare and interest may require."20 This left a large margin of discretion that
the President could use to bypass the Legislature altogether. This was a departure from the 1935
Constitution, which explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs.23

The responsibility of the President when it comes to treaties and international agreements under the
present Constitution is therefore shared with the Senate. This shared role, petitioners claim, is bypassed
by EDCA.

866
II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine
independence

The presence of the U.S. military forces in the country can be traced to their pivotal victory in the 1898
Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its sovereignty over the
Philippine Islands in favor of the U.S. upon its formal surrender a few months later.25 By 1899, the
Americans had consolidated a military administration in the archipelago.26

When it became clear that the American forces intended to impose colonial control over the Philippine
Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war against the U.S.27 The
Filipinos were ultimately defeated in the Philippine-American War, which lasted until 1902 and led to the
downfall of the first Philippine Republic.28 The Americans henceforth began to strengthen their foothold
in the country.29 They took over and expanded the former Spanish Naval Base in Subic Bay, Zambales,
and put up a cavalry post called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested the
desire to maintain military bases and armed forces in the country.31 The U.S. Congress later enacted the
Hare-Hawes-Cutting Act of 1933, which required that the proposed constitution of an independent
Philippines recognize the right of the U.S. to maintain the latter's armed forces and military bases.32 The
Philippine Legislature rejected that law, as it also gave the U.S. the power to unilaterally designate any
part of Philippine territory as a permanent military or naval base of the U.S. within two years from
complete independence.33

The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the Philippine
Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law provided for the
surrender to the Commonwealth Government of "all military and other reservations" of the U.S.
government in the Philippines, except "naval reservations and refueling stations."34 Furthermore, the law
authorized the U.S. President to enter into negotiations for the adjustment and settlement of all questions
relating to naval reservations and fueling stations within two years after the Philippines would have gained
independence.35 Under the Tydings-McDuffie Act, the U.S. President would proclaim the American
withdrawal and surrender of sovereignty over the islands 10 years after the inauguration of the new
government in the Philippines.36 This law eventually led to the promulgation of the 1935 Philippine
Constitution.

867
The original plan to surrender the military bases changed.37 At the height of the Second World War, the
Philippine and the U.S. Legislatures each passed resolutions authorizing their respective Presidents to
negotiate the matter of retaining military bases in the country after the planned withdrawal of the U.S.38
Subsequently, in 1946, the countries entered into the Treaty of General Relations, in which the U.S.
relinquished all control and sovereignty over the Philippine Islands, except the areas that would be
covered by the American military bases in the country.39 This treaty eventually led to the creation of the
post-colonial legal regime on which would hinge the continued presence of U.S. military forces until 1991:
the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual
Defense Treaty (MDT) of 1951.40

B. Former legal regime on the presence of U.S. armed forces in the territory of an independent Philippines
(1946-1991)

Soon after the Philippines was granted independence, the two countries entered into their first military
arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The Senate concurred on the
premise of "mutuality of security interest,"42 which provided for the presence and operation of 23 U.S.
military bases in the Philippines for 99 years or until the year 2046.43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the existing bases or to acquire new
ones as military necessity might require.44

A number of significant amendments to the 1947 MBA were made.45 With respect to its duration, the
parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99
years to a total of 44 years or until 1991.46 Concerning the number of U.S. military bases in the country,
the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of 17 U.S.
military bases covering a total area of 117,075 hectares.47 Twelve years later, the U.S. returned Sangley
Point in Cavite City through an exchange of notes.48 Then, through the Romulo-Murphy Exchange of
Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over Clark and Subic Bases
and the reduction of the areas that could be used by the U.S. military.49 The agreement also provided for
the mandatory review of the treaty every five years.50 In 1983, the parties revised the 1947 MBA through
the Romualdez-Armacost Agreement.51 The revision pertained to the operational use of the military
bases by the U.S. government within the context of Philippine sovereignty,52 including the need for prior
consultation with the Philippine government on the former' s use of the bases for military combat
operations or the establishment of long-range missiles.53

Pursuant to the legislative authorization granted under Republic Act No. 9,54 the President also entered
into the 1947 Military Assistance Agreement55 with the U.S. This executive agreement established the
conditions under which U.S. military assistance would be granted to the Philippines,56 particularly the
provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the
latter's defense forces.57 An exchange of notes in 1953 made it clear that the agreement would remain
in force until terminated by any of the parties.58

868
To further strengthen their defense and security relationship,59 the Philippines and the U.S. next entered
into the MDT in 1951. Concurred in by both the Philippine60 and the U.S.61 Senates, the treaty has two
main features: first, it allowed for mutual assistance in maintaining and developing their individual and
collective capacities to resist an armed attack;62 and second, it provided for their mutual self-defense in
the event of an armed attack against the territory of either party.63 The treaty was premised on their
recognition that an armed attack on either of them would equally be a threat to the security of the
other.64

C. Current legal regime on the presence of U.S. armed forces in the country

In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated for
a possible renewal of their defense and security relationship.65 Termed as the Treaty of Friendship,
Cooperation and Security, the countries sought to recast their military ties by providing a new framework
for their defense cooperation and the use of Philippine installations.66 One of the proposed provisions
included an arrangement in which U.S. forces would be granted the use of certain installations within the
Philippine naval base in Subic.67 On 16 September 1991, the Senate rejected the proposed treaty.68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing
with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-scale joint
military exercises.69 In the meantime, the respective governments of the two countries agreed70 to hold
joint exercises at a substantially reduced level.71 The military arrangements between them were revived
in 1999 when they concluded the first Visiting Forces Agreement (VFA).72

As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the country.74 It contains
provisions on the entry and departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and
exportation of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II), which
in turn regulated the treatment of Philippine military and civilian personnel visiting the U.S.76 The
Philippine Senate concurred in the first VFA on 27 May 1999.77

Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part in
joint military exercises with their Filipino counterparts.78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant to the MDT.79

869
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to
"further the interoperability, readiness, and effectiveness of their respective military forces"80 in
accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA.81 The new agreement
outlined the basic terms, conditions, and procedures for facilitating the reciprocal provision of logistics
support, supplies, and services between the military forces of the two countries.82 The phrase "logistics
support and services" includes billeting, operations support, construction and use of temporary
structures, and storage services during an approved activity under the existing military arrangements.83
Already extended twice, the agreement will last until 2017.84

D. The Enhanced Defense Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed
Locations" in the country. It was not transmitted to the Senate on the executive's understanding that to
do so was no longer necessary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and
the U.S. Embassy exchanged diplomatic notes confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two countries.86

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years.87 After eight rounds of negotiations, the
Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement on 28
April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified during the
oral arguments90 that the Philippine and the U.S. governments had yet to agree formally on the specific
sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They
primarily argue that it should have been in the form of a treaty concurred in by the Senate, not an
executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file
their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105.91 The resolution
expresses the "strong sense"92 of the Senators that for EDCA to become valid and effective, it must first
be transmitted to the Senate for deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of discretion
in entering into EDCA in the form of an executive agreement. For this reason, we cull the issues before us:

870
A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign military bases, troops, or
facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws
and treaties

IV. DISCUSSION

A. Whether the essential requisites for judicial review have been satisfied

Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating the
Constitution. They stress that our fundamental law is explicit in prohibiting the presence of foreign military
forces in the country, except under a treaty concurred in by the Senate. Before this Court may begin to
analyze the constitutionality or validity of an official act of a coequal branch of government, however,
petitioners must show that they have satisfied all the essential requisites for judicial review.93

Distinguished from the general notion of judicial power, the power of judicial review specially refers to
both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers.94 As articulated in Section
1, Article VIII of the Constitution, the power of judicial review involves the power to resolve cases in which
the questions concern the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation.95 In Angara v.
Electoral Commission, this Court exhaustively discussed this "moderating power" as part of the system of
checks and balances under the Constitution. In our fundamental law, the role of the Court is to determine
whether a branch of government has adhered to the specific restrictions and limitations of the latter's
power:96

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure coordination in the workings of the

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various departments of the government. x x x. And the judiciary in turn, with the Supreme Court as the
final arbiter, effectively checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the Constitution.

xxxx

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much
as it was within the power of our people, acting through their delegates to so provide, that instrument
which is the expression of their sovereignty however limited, has established a republican government
intended to operate and function as a harmonious whole, under a system of checks and balances, and
subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth
in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided
for a mechanism by which to direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitations and restrictions
embodied in our Constitution are real as they should be in any living constitution. x x x. In our case, this
moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of [the
1935] Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and
extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the
rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. x x x x. (Emphases supplied)

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has been
attended with grave abuse.97 The expansion of this power has made the political question doctrine "no
longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review."98

This moderating power, however, must be exercised carefully and only if it cannot be completely avoided.
We stress that our Constitution is so incisively designed that it identifies the spheres of expertise within

872
which the different branches of government shall function and the questions of policy that they shall
resolve.99 Since the power of judicial review involves the delicate exercise of examining the validity or
constitutionality of an act of a coequal branch of government, this Court must continually exercise
restraint to avoid the risk of supplanting the wisdom of the constitutionally appointed actor with that of
its own.100

Even as we are left with no recourse but to bare our power to check an act of a coequal branch of
government - in this case the executive - we must abide by the stringent requirements for the exercise of
that power under the Constitution. Demetria v. Alba101 and Francisco v. House of Representatives102
cite the "pillars" of the limitations on the power of judicial review as enunciated in the concurring opinion
of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley Authority.103 Francisco104
redressed these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

2. That rules of constitutional law shall be formulated only as required by the facts of the case

3. That judgment may not be sustained on some other ground

4. That there be actual injury sustained by the party by reason of the operation of the statute

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

These are the specific safeguards laid down by the Court when it exercises its power of judicial review.105
Guided by these pillars, it may invoke the power only when the following four stringent requirements are
satisfied: (a) there is an actual case or controversy; (b) petitioners possess locus standi; (c) the question
of constitutionality is raised at the earliest opportunity; and (d) the issue of constitutionality is the lis mota
of the case.106 Of these four, the first two conditions will be the focus of our discussion.

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1. Petitioners have shown the presence of an actual case or controversy.

The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have not
been deprived of the opportunity to invoke the privileges of the institution they are representing. It
contends that the nonparticipation of the Senators in the present petitions only confirms that even they
believe that EDCA is a binding executive agreement that does not require their concurrence.

It must be emphasized that the Senate has already expressed its position through SR 105.108 Through the
Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to participate
in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional role indicates
that an actual controversy - albeit brought to the Court by non-Senators, exists.

Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as basis
for finding that there is no actual case or controversy before us. We point out that the focus of this
requirement is the ripeness for adjudication of the matter at hand, as opposed to its being merely
conjectural or anticipatory.109 The case must involve a definite and concrete issue involving real parties
with conflicting legal rights and legal claims admitting of specific relief through a decree conclusive in
nature.110 It should not equate with a mere request for an opinion or advice on what the law would be
upon an abstract, hypothetical, or contingent state of facts.111 As explained in Angara v. Electoral
Commission:112

[The] power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of actual cases
and controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government. (Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S. Embassy that
"all internal requirements of the Philippines x x x have already been complied with."113 By this exchange
of diplomatic notes, the Executive Department effectively performed the last act required under Article
XII(l) of EDCA before the agreement entered into force. Section 25, Article XVIII of the Constitution, is clear
that the presence of foreign military forces in the country shall only be allowed by virtue of a treaty
concurred in by the Senate. Hence, the performance of an official act by the Executive Department that
led to the entry into force of an executive agreement was sufficient to satisfy the actual case or
controversy requirement.

874
2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues involving
matters of transcendental importance.

The question of locus standi or legal standing focuses on the determination of whether those assailing the
governmental act have the right of appearance to bring the matter to the court for adjudication.114 They
must show that they have a personal and substantial interest in the case, such that they have sustained
or are in immediate danger of sustaining, some direct injury as a consequence of the enforcement of the
challenged governmental act.115 Here, "interest" in the question involved must be material - an interest
that is in issue and will be affected by the official act - as distinguished from being merely incidental or
general.116 Clearly, it would be insufficient to show that the law or any governmental act is invalid, and
that petitioners stand to suffer in some indefinite way.117 They must show that they have a particular
interest in bringing the suit, and that they have been or are about to be denied some right or privilege to
which they are lawfully entitled, or that they are about to be subjected to some burden or penalty by
reason of the act complained of.118 The reason why those who challenge the validity of a law or an
international agreement are required to allege the existence of a personal stake in the outcome of the
controversy is "to assure the concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional questions."119

The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body has
the requisite standing, but considering that it has not formally filed a pleading to join the suit, as it merely
conveyed to the Supreme Court its sense that EDCA needs the Senate's concurrence to be valid,
petitioners continue to suffer from lack of standing.

In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the
requirement of having to establish a direct and personal interest if they show that the act affects a public
right.120 In arguing that they have legal standing, they claim121 that the case they have filed is a
concerned citizen's suit. But aside from general statements that the petitions involve the protection of a
public right, and that their constitutional rights as citizens would be violated, they fail to make any specific
assertion of a particular public right that would be violated by the enforcement of EDCA. For their failure
to do so, the present petitions cannot be considered by the Court as citizens' suits that would justify a
disregard of the aforementioned requirements.

In claiming that they have legal standing as taxpayers, petitioners122 aver that the implementation of
EDCA would result in the unlawful use of public funds. They emphasize that Article X(1) refers to an
appropriation of funds; and that the agreement entails a waiver of the payment of taxes, fees, and rentals.
During the oral arguments, however, they admitted that the government had not yet appropriated or
actually disbursed public funds for the purpose of implementing the agreement.123 The OSG, on the other
hand, maintains that petitioners cannot sue as taxpayers.124 Respondent explains that EDCA is neither

875
meant to be a tax measure, nor is it directed at the disbursement of public funds.

A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal
disbursement of public funds derived from taxation.125 Here, those challenging the act must specifically
show that they have sufficient interest in preventing the illegal expenditure of public money, and that
they will sustain a direct injury as a result of the enforcement of the assailed act.126 Applying that
principle to this case, they must establish that EDCA involves the exercise by Congress of its taxing or
spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a
taxpayers' suit contemplates a situation in which there is already an appropriation or a disbursement of
public funds.128 A reading of Article X(l) of EDCA would show that there has been neither an appropriation
nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated funds authorized for
these purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the disbursement of public funds,
the money must come from appropriated funds that are specifically authorized for this purpose. Under
the agreement, before there can even be a disbursement of public funds, there must first be a legislative
action. Until and unless the Legislature appropriates funds for EDCA, or unless petitioners can pinpoint a
specific item in the current budget that allows expenditure under the agreement, we cannot at this time
rule that there is in fact an appropriation or a disbursement of funds that would justify the filing of a
taxpayers' suit.

Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list representatives have the
standing to challenge the act of the Executive Department, especially if it impairs the constitutional
prerogatives, powers, and privileges of their office. While they admit that there is no incumbent Senator
who has taken part in the present petition, they nonetheless assert that they also stand to sustain a
derivative but substantial injury as legislators. They argue that under the Constitution, legislative power
is vested in both the Senate and the House of Representatives; consequently, it is the entire Legislative
Department that has a voice in determining whether or not the presence of foreign military should be
allowed. They maintain that as members of the Legislature, they have the requisite personality to bring a
suit, especially when a constitutional issue is raised.

The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the lack
of Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and
international agreements is an "institutional prerogative" granted by the Constitution to the Senate.

876
Accordingly, the OSG argues that in case of an allegation of impairment of that power, the injured party
would be the Senate as an institution or any of its incumbent members, as it is the Senate's constitutional
function that is allegedly being violated.

The legal standing of an institution of the Legislature or of any of its Members has already been recognized
by this Court in a number of cases.131 What is in question here is the alleged impairment of the
constitutional duties and powers granted to, or the impermissible intrusion upon the domain of, the
Legislature or an institution thereof.132 In the case of suits initiated by the legislators themselves, this
Court has recognized their standing to question the validity of any official action that they claim infringes
the prerogatives, powers, and privileges vested by the Constitution in their office.133 As aptly explained
by Justice Perfecto in Mabanag v. Lopez Vito:134

Being members of Congress, they are even duty bound to see that the latter act within the bounds of the
Constitution which, as representatives of the people, they should uphold, unless they are to commit a
flagrant betrayal of public trust. They are representatives of the sovereign people and it is their sacred
duty to see to it that the fundamental law embodying the will of the sovereign people is not trampled
upon. (Emphases supplied)

We emphasize that in a legislators' suit, those Members of Congress who are challenging the official act
have standing only to the extent that the alleged violation impinges on their right to participate in the
exercise of the powers of the institution of which they are members.135 Legislators have the standing "to
maintain inviolate the prerogatives, powers, and privileges vested by the Constitution in their office and
are allowed to sue to question the validity of any official action, which they claim infringes their
prerogatives as legislators."136 As legislators, they must clearly show that there was a direct injury to
their persons or the institution to which they belong.137

As correctly argued by respondent, the power to concur in a treaty or an international agreement is an

institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature. In
Pimentel v. Office of the Executive Secretary, this Court did not recognize the standing of one of the
petitioners therein who was a member of the House of Representatives. The petition in that case sought
to compel the transmission to the Senate for concurrence of the signed text of the Statute of the
International Criminal Court. Since that petition invoked the power of the Senate to grant or withhold its
concurrence in a treaty entered into by the Executive Department, only then incumbent Senator Pimentel
was allowed to assert that authority of the Senate of which he was a member.

Therefore, none of the initial petitioners in the present controversy has the standing to maintain the suits
as legislators.

877
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the following
reasons.

In any case, petitioners raise issues involving matters of transcendental importance.

Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition tackles
issues that are of transcendental importance. They point out that the matter before us is about the proper
exercise of the Executive Department's power to enter into international agreements in relation to that
of the Senate to concur in those agreements. They also assert that EDCA would cause grave injustice, as
well as irreparable violation of the Constitution and of the Filipino people's rights.

The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the present
petitions involve matters of transcendental importance in order to cure their inability to comply with the
constitutional requirement of standing. Respondent bewails the overuse of "transcendental importance"
as an exception to the traditional requirements of constitutional litigation. It stresses that one of the
purposes of these requirements is to protect the Supreme Court from unnecessary litigation of
constitutional questions.

In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal
standing, especially when paramount interest is involved. Indeed, when those who challenge the official
act are able to craft an issue of transcendental significance to the people, the Court may exercise its sound
discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a law or any other government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that not
every other case, however strong public interest may be, can qualify as an issue of transcendental
importance. Before it can be impelled to brush aside the essential requisites for exercising its power of
judicial review, it must at the very least consider a number of factors: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the
lack of any other party that has a more direct and specific interest in raising the present questions.141

An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows that
petitioners have presented serious constitutional issues that provide ample justification for the Court to
set aside the rule on standing. The transcendental importance of the issues presented here is rooted in
the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases may be allowed in the country. The
DFA has already confirmed to the U.S. Embassy that "all internal requirements of the Philippines x x x have

878
already been complied with."142 It behooves the Court in this instance to take a liberal stance towards
the rule on standing and to determine forthwith whether there was grave abuse of discretion on the part
of the Executive Department.

We therefore rule that this case is a proper subject for judicial review.

B. Whether the President may enter into an executive agreement on foreign military bases, troops, or
facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws
and treaties

Issues B and C shall be discussed together infra.

1. The role of the President as the executor of the law includes the duty to defend the State, for which
purpose he may use that power in the conduct of foreign relations

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the
Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted with
powers categorized as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be exercised except by the
department given the power.144

This divide continued throughout the different versions of the Philippine Constitution and specifically
vested the supreme executive power in the Governor-General of the Philippines,145 a position inherited
by the President of the Philippines when the country attained independence. One of the principal
functions of the supreme executive is the responsibility for the faithful execution of the laws as embodied
by the oath of office.146 The oath of the President prescribed by the 1987 Constitution reads thus:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or
Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God. (In case
of affirmation, last sentence will be omitted.)147 (Emphases supplied)

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This Court has interpreted the faithful execution clause as an obligation imposed on the President, and
not a separate grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty in no
uncertain terms and includes it in the provision regarding the President's power of control over the
executive department, viz:

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.

The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the
President. In the 1973 Constitution, for instance, the provision simply gives the President control over the
ministries.149 A similar language, not in the form of the President's oath, was present in the 1935
Constitution, particularly in the enumeration of executive functions.150 By 1987, executive power was
codified not only in the Constitution, but also in the Administrative Code:151

SECTION 1. Power of Control. - The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied)

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately
related to the other executive functions. These functions include the faithful execution of the law in
autonomous regions;152 the right to prosecute crimes;153 the implementation of transportation
projects;154 the duty to ensure compliance with treaties, executive agreements and executive orders;155
the authority to deport undesirable aliens;156 the conferment of national awards under the President's
jurisdiction;157 and the overall administration and control of the executive department.158

These obligations are as broad as they sound, for a President cannot function with crippled hands, but
must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted.159

More important, this mandate is self-executory by virtue of its being inherently executive in nature.160
As Justice Antonio T. Carpio previously wrote,161

[i]f the rules are issued by the President in implementation or execution of self-executory constitutional
powers vested in the President, the rule-making power of the President is not a delegated legislative
power. The most important self-executory constitutional power of the President is the President's
constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the
President can execute the law without any delegation of power from the legislature.

880
The import of this characteristic is that the manner of the President's execution of the law, even if not
expressly granted by the law, is justified by necessity and limited only by law, since the President must
"take necessary and proper steps to carry into execution the law."162 Justice George Malcolm states this
principle in a grand manner:163

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged. It is
still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the government. A
feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The mistakes of State governments need not
be repeated here.

xxxx

Every other consideration to one side, this remains certain - The Congress of the United States clearly
intended that the Governor-General's power should be commensurate with his responsibility. The
Congress never intended that the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the power to do so. The interests
of the Philippines will be best served by strict adherence to the basic principles of constitutional
government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary
for Philippine defense interests. It is no coincidence that the constitutional provision on the faithful
execution clause was followed by that on the President's commander-in-chief powers,164 which are
specifically granted during extraordinary events of lawless violence, invasion, or rebellion. And this duty
of defending the country is unceasing, even in times when there is no state of lawlesss violence, invasion,
or rebellion. At such times, the President has full powers to ensure the faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increasing the military's defensive
capabilities, which could include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting Opinion
as the beginning of a "patent misconception."165 His dissent argues that this approach taken in analyzing
the President's role as executor of the laws is preceded by the duty to preserve and defend the

881
Constitution, which was allegedly overlooked.166

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the
analysis, if read holistically and in context. The concept that the President cannot function with crippled
hands and therefore can disregard the need for Senate concurrence in treaties167 was never expressed
or implied. Rather, the appropriate reading of the preceding analysis shows that the point being
elucidated is the reality that the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued with both
concerns to the full extent of his powers, subject only to the limits supplied by law. In other words, apart
from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner of execution
by the President must be given utmost deference. This approach is not different from that taken by the
Court in situations with fairly similar contexts.

Thus, the analysis portrayed by the dissent does not give the President authority to bypass constitutional
safeguards and limits. In fact, it specifies what these limitations are, how these limitations are triggered,
how these limitations function, and what can be done within the sphere of constitutional duties and
limitations of the President.

Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign
relations power of the President should not be interpreted in isolation.168 The analysis itself
demonstrates how the foreign affairs function, while mostly the President's, is shared in several instances,
namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans,
treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of
executive acts; Sections 4 and 25 of Article XVIII on treaties and international agreements entered into
prior to the Constitution and on the presence of foreign military troops, bases, or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two major presidential
functions and the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not novel
to the Court. The President's act of treating EDCA as an executive agreement is not the principal power
being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary analysis is in reference
to the expansive power of foreign affairs. We have long treated this power as something the Courts must
not unduly restrict. As we stated recently in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its nationals against a foreign government

882
is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department via the instant petition for
certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he President
is the sole organ of the nation in its external relations, and its sole representative with foreign relations."

It is quite apparent that if, in the maintenance of our international relations, embarrassment - perhaps
serious embarrassment - is to be avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the international field must often
accord to the President a degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the form of diplomatic, consular and other
officials ....

This ruling has been incorporated in our jurisprudence through Bavan v. Executive Secretary and Pimentel
v. Executive Secretary; its overreaching principle was, perhaps, best articulated in (now Chief) Justice
Puno's dissent in Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with decisiveness
.... It is also the President who possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under
less stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences.169 (Emphases supplied)

Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.

883
2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops or facilities,
except by way of a treaty concurred in by the Senate - a clear limitation on the President's dual role as
defender of the State and as sole authority in foreign relations.

Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987
Constitution expressly limits his ability in instances when it involves the entry of foreign military bases,
troops or facilities. The initial limitation is found in Section 21 of the provisions on the Executive
Department: "No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate." The specific limitation is given by Section 25 of the
Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting State.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article VII. This means that both provisions must be read as
additional limitations to the President's overarching executive function in matters of defense and foreign
relations.

3. The President, however, may enter into an executive agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or (b) it merely aims to implement an existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting State. (Emphases supplied)

In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty" duly concurred
in by the Senate. They stress that the Constitution is unambigous in mandating the transmission to the
Senate of all international agreements concluded after the expiration of the MBA in 1991 - agreements

884
that concern the presence of foreign military bases, troops, or facilities in the country. Accordingly,
petitioners maintain that the Executive Department is not given the choice to conclude agreements like
EDCA in the form of an executive agreement.

This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against
and 2 abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty
for concurrence by at least two-thirds of all its members.

The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to
support its position. Compared with the lone constitutional provision that the Office of the Solicitor
General (OSG) cites, which is Article XVIII, Section 4(2), which includes the constitutionality of "executive
agreement(s)" among the cases subject to the Supreme Court's power of judicial review, the Constitution
clearly requires submission of EDCA to the Senate. Two specific provisions versus one general provision
means that the specific provisions prevail. The term "executive agreement" is "a term wandering alone in
the Constitution, bereft of provenance and an unidentified constitutional mystery."

The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the MDT,
which the Executive claims to be partly implemented through EDCA, is already obsolete.

There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the
comment on interpellation made by Senator Santiago.

First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the
powers of the President. When the Court validated the concept of "executive agreement," it did so with
full knowledge of the Senate's role in concurring in treaties. It was aware of the problematique of
distinguishing when an international agreement needed Senate concurrence for validity, and when it did
not; and the Court continued to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the power of the President to enter
into an executive agreement.173

Second, the MDT has not been rendered obsolescent, considering that as late as 2009,174 this Court
continued to recognize its validity.

Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion
that it applies only to a proposed agreement between our government and a foreign government,
whereby military bases, troops, or facilities of such foreign government would be "allowed" or would "gain
entry" Philippine territory.

885
Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the
President is not authorized by law to allow foreign military bases, troops, or facilities to enter the
Philippines, except under a treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done after
entry.

Under the principles of constitutional construction, of paramount consideration is the plain meaning of
the language expressed in the Constitution, or the verba legis rule.175 It is presumed that the provisions
have been carefully crafted in order to express the objective it seeks to attain.176 It is incumbent upon
the Court to refrain from going beyond the plain meaning of the words used in the Constitution. It is
presumed that the framers and the people meant what they said when they said it, and that this
understanding was reflected in the Constitution and understood by the people in the way it was meant
to be understood when the fundamental law was ordained and promulgated.177 As this Court has often
said:

We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain
that it should ever be present in the people's consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus, these are the cases where the need for
construction is reduced to a minimum.178 (Emphases supplied)

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that
further construction must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission on
Elections,180 we reiterated this guiding principle:

it [is] safer to construe the Constitution from what appears upon its face. The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the framers'
understanding thereof. (Emphases supplied)

The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be allowed
in the Philippines" plainly refers to the entry of bases, troops, or facilities in the country. The Oxford
English Dictionary defines the word "allow" as a transitive verb that means "to permit, enable"; "to give

886
consent to the occurrence of or relax restraint on (an action, event, or activity)"; "to consent to the
presence or attendance of (a person)"; and, when with an adverbial of place, "to permit (a person or
animal) to go, come, or be in, out, near, etc."181 Black's Law Dictionary defines the term as one that
means "[t]o grant, approve, or permit."182

The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or position in
space or anything having material extension: Within the limits or bounds of, within (any place or
thing)."183 That something is the Philippines, which is the noun that follows.

It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases,
troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only to the
limitations provided by the rest of the Constitution and Philippine law, and not to the Section 25
requirement of validity through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v. Executive
Secretary:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
"activities" arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history
and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities
-as opposed to combat itself-such as the one subject of the instant petition, are indeed authorized.184
(Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military
troops in the Philippines,185 readily implying the legality of their initial entry into the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely involves
"adjustments in detail" in the implementation of the MDT and the VFA.186 It points out that there are

887
existing treaties between the Philippines and the U.S. that have already been concurred in by the
Philippine Senate and have thereby met the requirements of the Constitution under Section 25. Because
of the status of these prior agreements, respondent emphasizes that EDCA need not be transmitted to
the Senate.

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba legis
construction to the words of Article XVIII, Section 25.187 It claims that the provision is "neither plain, nor
that simple."188 To buttress its disagreement, the dissent states that the provision refers to a historical
incident, which is the expiration of the 1947 MBA.189 Accordingly, this position requires questioning the
circumstances that led to the historical event, and the meaning of the terms under Article XVIII, Section
25.

This objection is quite strange. The construction technique of verba legis is not inapplicable just because
a provision has a specific historical context. In fact, every provision of the Constitution has a specific
historical context. The purpose of constitutional and statutory construction is to set tiers of interpretation
to guide the Court as to how a particular provision functions. Verba legis is of paramount consideration,
but it is not the only consideration. As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain
that it should ever be present in the people's consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus, these are the cases where the need for
construction is reduced to a minimum.190 (Emphases supplied)

As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase being
construed is "shall not be allowed in the Philippines" and not the preceding one referring to "the
expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities." It is explicit in the wording
of the provision itself that any interpretation goes beyond the text itself and into the discussion of the
framers, the context of the Constitutional Commission's time of drafting, and the history of the 1947 MBA.
Without reference to these factors, a reader would not understand those terms. However, for the phrase
"shall not be allowed in the Philippines," there is no need for such reference. The law is clear. No less than
the Senate understood this when it ratified the VFA.

888
4. The President may generally enter into executive agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty already concurred in by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more
exacting requirement was introduced because of the previous experience of the country when its
representatives felt compelled to consent to the old MBA.191 They felt constrained to agree to the MBA
in fulfilment of one of the major conditions for the country to gain independence from the U.S.192 As a
result of that experience, a second layer of consent for agreements that allow military bases, troops and
facilities in the country is now articulated in Article XVIII of our present Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely ignore
the intent of our constitutional framers when they provided for that additional layer, nor the vigorous
statements of this Court that affirm the continued existence of that class of international agreements
called "executive agreements."

The power of the President to enter into binding executive agreements without Senate concurrence is
already well-established in this jurisdiction.193 That power has been alluded to in our present and past
Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and during the deliberations of
the Constitutional Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the country.199

As the sole organ of our foreign relations200 and the constitutionally assigned chief architect of our
foreign policy,201 the President is vested with the exclusive power to conduct and manage the country's
interface with other states and governments. Being the principal representative of the Philippines, the
Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters into international agreements; promotes trade,
investments, tourism and other economic relations; and settles international disputes with other
states.202

As previously discussed, this constitutional mandate emanates from the inherent power of the President
to enter into agreements with other states, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence. The existence of this presidential power203
is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed below, executive agreements are among those official governmental acts that can
be the subject of this Court's power of judicial review:

889
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(Emphases supplied)

In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as "international
agreements embodying adjustments of detail carrying out well-established national policies and traditions
and those involving arrangements of a more or less temporary nature."204 In Bayan Muna v. Romulo, this
Court further clarified that executive agreements can cover a wide array of subjects that have various
scopes and purposes.205 They are no longer limited to the traditional subjects that are usually covered
by executive agreements as identified in Eastern Sea Trading. The Court thoroughly discussed this matter
in the following manner:

The categorization of subject matters that may be covered by international agreements mentioned in
Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights, the environment, and the sea. In fact,
in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects
such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace
corps, arms limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading
cannot circumscribe the option of each state on the matter of which the international agreement format
would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:

. . . It would be useless to undertake to discuss here the large variety of executive agreements as such
concluded from time to time. Hundreds of executive agreements, other than those entered into under
the trade-agreement act, have been negotiated with foreign governments. . . . They cover such subjects
as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft,
custom matters and commercial relations generally, international claims, postal matters, the registration
of trademarks and copyrights, etc .... (Emphases Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence.206 This distinctive feature was recognized as early as in Eastern

890
Sea Trading (1961), viz:

Treaties are formal documents which require ratification with the approval of two-thirds of the Senate.
Executive agreements become binding through executive action without the need of a vote by the Senate
or by Congress.

xxxx

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

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on
whether the general term "international agreement" included executive agreements, and whether it was
necessary to include an express proviso that would exclude executive agreements from the requirement
of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in
Eastern Sea Trading, the Constitutional Commission members ultimately decided that the term
"international agreements" as contemplated in Section 21, Article VII, does not include executive
agreements, and that a proviso is no longer needed. Their discussion is reproduced below:207

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained
the words "international agreement" which I think is the correct judgment on the matter because an
international agreement is different from a treaty. A treaty is a contract between parties which is in the
nature of international agreement and also a municipal law in the sense that the people are bound. So
there is a conceptual difference. However, I would like to be clarified if the international agreements
include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate
the conditions which are necessary for the agreement or whatever it may be to become valid or effective
as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is purely
proceeding from an executive act which affects external relations independent of the legislative and the

891
other is an executive act in pursuance of legislative authorization. The first kind might take the form of
just conventions or exchanges of notes or protocol while the other, which would be pursuant to the
legislative authorization, may be in the nature of commercial agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or
to determine the details for the implementation of the treaty. We are speaking of executive agreements,
not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive
agreement which is just protocol or an exchange of notes and this would be in the nature of reinforcement
of claims of a citizen against a country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines is
concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains to us
otherwise, an explicit proviso which would except executive agreements from the requirement of
concurrence of two-thirds of the Members of the Senate. Unless I am enlightened by the Committee I
propose that tentatively, the sentence should read. "No treaty or international agreement EXCEPT
EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading] might help
clarify this:

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

Agreements with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements
involving political issues or changes of national policy and those involving international agreements of a
permanent character usually take the form of treaties. But international agreements embodying
adjustments of detail, carrying out well established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take the form of executive agreements.

892
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements which need
concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but
which are proceeding from the authorization of Congress. If that is our understanding, then I am willing
to withdraw that amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent concurrence
by Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive agreements"
and that would make unnecessary any explicit proviso on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these
executive agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the
implementation of treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be
considered permanent? What would be the measure of permanency? I do not conceive of a treaty that is

893
going to be forever, so there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be
included in a provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the
executive agreement partakes of the nature of a treaty, then it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.

MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international agreements"
would include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as far
as the Committee is concerned, the term "international agreements" does not include the term "executive
agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again recognized
in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the
present Constitution, quoted Eastern Sea Trading in reiterating that executive agreements are valid and
binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the legal
mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,208 executive
agreements merely involve arrangements on the implementation of existing policies, rules, laws, or

894
agreements. They are concluded (1) to adjust the details of a treaty;209 (2) pursuant to or upon
confirmation by an act of the Legislature;210 or (3) in the exercise of the President's independent powers
under the Constitution.211 The raison d'etre of executive agreements hinges on prior constitutional or
legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international agreements.
International practice has accepted the use of various forms and designations of international
agreements, ranging from the traditional notion of a treaty - which connotes a formal, solemn instrument
- to engagements concluded in modem, simplified forms that no longer necessitate ratification.212 An
international agreement may take different forms: treaty, act, protocol, agreement, concordat,
compromis d'arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter,
agreed minute, memorandum of agreement, modus vivendi, or some other form.213 Consequently,
under international law, the distinction between a treaty and an international agreement or even an
executive agreement is irrelevant for purposes of determining international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional
requirement of Senate concurrence is demoted to an optional constitutional directive. There remain two
very important features that distinguish treaties from executive agreements and translate them into
terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules.214 In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate215 unlike executive agreements, which are solely
executive actions.216 Because of legislative participation through the Senate, a treaty is regarded as being
on the same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective.219 Both types
of international agreement are nevertheless subject to the supremacy of the Constitution.220

This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power
must still be exercised within the context and the parameters set by the Constitution, as well as by existing

895
domestic and international laws. There are constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as those that involve the following:

a. The policy of freedom from nuclear weapons within Philippine territory221

b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts, which must be pursuant to the authority granted by Congress222

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the
Members of Congress223

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously
concurred in by the Monetary Board224

e. The authorization of the presence of foreign military bases, troops, or facilities in the country must be
in the form of a treaty duly concurred in by the Senate.225

f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should
the form of the government chosen be a treaty.

5. The President had the choice to enter into EDCA by way of an executive agreement or a treaty.

No court can tell the President to desist from choosing an executive agreement over a treaty to embody
an international agreement, unless the case falls squarely within Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional Commission, they were
aware that legally binding international agreements were being entered into by countries in forms other
than a treaty. At the same time, it is clear that they were also keen to preserve the concept of "executive
agreements" and the right of the President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that they understood the
following realities:

896
1. Treaties, international agreements, and executive agreements are all constitutional manifestations of
the conduct of foreign affairs with their distinct legal characteristics.

a. Treaties are formal contracts between the Philippines and other States-parties, which are in the nature
of international agreements, and also of municipal laws in the sense of their binding nature.226

b. International agreements are similar instruments, the provisions of which may require the ratification
of a designated number of parties thereto. These agreements involving political issues or changes in
national policy, as well as those involving international agreements of a permanent character, usually take
the form of treaties. They may also include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by Congress, thus dispensing with the
requirement of concurrence by the Senate.227

c. Executive agreements are generally intended to implement a treaty already enforced or to determine
the details of the implementation thereof that do not affect the sovereignty of the State.228

2. Treaties and international agreements that cannot be mere executive agreements must, by
constitutional decree, be concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or facilities
- is particularly restricted. The requirements are that it be in the form of a treaty concurred in by the
Senate; that when Congress so requires, it be ratified by a majority of the votes cast by the people in a
national referendum held for that purpose; and that it be recognized as a treaty by the other contracting
State.

4. Thus, executive agreements can continue to exist as a species of international agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional
authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the form
of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:

897
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature
of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point, petitioner submits
that the subject of the Agreement does not fall under any of the subject-categories that xx x may be
covered by an executive agreement, such as commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of
claims.

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

xxxx

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

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the nation
is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the day, the President - by ratifying, thru her
deputies, the non-surrender agreement - did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and wider

898
discretion, subject only to the least amount of checks and restrictions under the Constitution.229 The
rationale behind this power and discretion was recognized by the Court in Vinuya v. Executive Secretary,
cited earlier.230

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements
and its Ratification, thus, correctly reflected the inherent powers of the President when it stated that the
DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases in
which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional powers
and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to
determine whether the international agreement is consistent with the applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it merely involves detail
adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that already
deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In fact, the Court
has already implicitly acknowledged this practice in Lim v. Executive Secretary.231 In that case, the Court
was asked to scrutinize the constitutionality of the Terms of Reference of the Balikatan 02-1 joint military
exercises, which sought to implement the VFA. Concluded in the form of an executive agreement, the
Terms of Reference detailed the coverage of the term "activities" mentioned in the treaty and settled the
matters pertaining to the construction of temporary structures for the U.S. troops during the activities;
the duration and location of the exercises; the number of participants; and the extent of and limitations
on the activities of the U.S. forces. The Court upheld the Terms of Reference as being consistent with the
VFA. It no longer took issue with the fact that the Balikatan Terms of Reference was not in the form of a
treaty concurred in by the Senate, even if it dealt with the regulation of the activities of foreign military
forces on Philippine territory.

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an
attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces member,
whose case was pending appeal after his conviction by a trial court for the crime of rape. In testing the
validity of the latter agreement, the Court precisely alluded to one of the inherent limitations of an
executive agreement: it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former
was squarely inconsistent with a provision in the treaty requiring that the detention be "by Philippine
authorities." Consequently, the Court ordered the Secretary of Foreign Affairs to comply with the VFA and

899
"forthwith negotiate with the United States representatives for the appropriate agreement on detention
facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in resolving
the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be fulfilled by
the international agreement allowing the presence of foreign military bases, troops, or facilities in the
Philippines: (a) the agreement must be in the form of a treaty, and (b) it must be duly concurred in by the
Senate.

2. If the agreement is not covered by the above situation, then the President may choose the form of the
agreement (i.e., either an executive agreement or a treaty), provided that the agreement dealing with
foreign military bases, troops, or facilities is not the principal agreement that first allows their entry or
presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement; and must not unduly expand the international
obligation expressly mentioned or necessarily implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, as well as with existing laws and
treaties.

In light of the President's choice to enter into EDCA in the form of an executive agreement, respondents
carry the burden of proving that it is a mere implementation of existing laws and treaties concurred in by
the Senate. EDCA must thus be carefully dissected to ascertain if it remains within the legal parameters
of a valid executive agreement.

7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA

The starting point of our analysis is the rule that "an executive agreement xx x may not be used to amend
a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the question
of the validity of executive agreements by comparing them with the general framework and the specific
provisions of the treaties they seek to implement.

900
In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework
of the treaty antecedents to which the Philippines bound itself,"235 i.e., the MDT and the VFA. The Court
proceeded to examine the extent of the term "activities" as contemplated in Articles 1236 and II237 of
the VFA. It later on found that the term "activities" was deliberately left undefined and ambiguous in order
to permit "a wide scope of undertakings subject only to the approval of the Philippine government"238
and thereby allow the parties "a certain leeway in negotiation."239 The Court eventually ruled that the
Terms of Reference fell within the sanctioned or allowable activities, especially in the context of the VFA
and the MDT.

The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on custody
and detention to ascertain the validity of the Romulo-Kenney Agreement.240 It eventually found that the
two international agreements were not in accord, since the Romulo-Kenney Agreement had stipulated
that U.S. military personnel shall be detained at the U.S. Embassy Compound and guarded by U.S. military
personnel, instead of by Philippine authorities. According to the Court, the parties "recognized the
difference between custody during the trial and detention after conviction."241 Pursuant to Article V(6)
of the VFA, the custody of a U.S. military personnel resides with U.S. military authorities during trial. Once
there is a finding of guilt, Article V(l0) requires that the confinement or detention be "by Philippine
authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends the
VFA"242 and follows with an enumeration of the differences between EDCA and the VFA. While these
arguments will be rebutted more fully further on, an initial answer can already be given to each of the
concerns raised by his dissent.

The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows
temporary stationing on a rotational basis of U.S. military personnel and their contractors in physical
locations with permanent facilities and pre-positioned military materiel.

This argument does not take into account that these permanent facilities, while built by U.S. forces, are
to be owned by the Philippines once constructed.243 Even the VFA allowed construction for the benefit
of U.S. forces during their temporary visits.

The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel,
which can include various types of warships, fighter planes, bombers, and vessels, as well as land and
amphibious vehicles and their corresponding ammunition.244

However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be brought
into the country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials, supplies,

901
and other property are imported into or acquired in the Philippines by or on behalf of the U.S. Armed
Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in connection with activities
under the VFA. These provisions likewise provide for the waiver of the specific duties, taxes, charges, and
fees that correspond to these equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of
troops for training exercises, whereas EDCA allows the use of territory for launching military and
paramilitary operations conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat activides only, whereas the entry and activities
of U.S. forces into Agreed Locations were borne of military necessity or had a martial character, and were
therefore not contemplated by the VFA.246

This Court's jurisprudence however established in no uncertain terms that combat-related activities, as
opposed to actual combat, were allowed under the MDT and VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities as opposed to combat itself such as the one subject of the instant petition, are indeed
authorized.247

Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent of
the VFA since EDCA's combat-related components are allowed under the treaty.

Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and EDCA
deal with the presence of U.S. forces within the Philippines, but make no mention of being platforms for
activity beyond Philippine territory. While it may be that, as applied, military operations under either the
VFA or EDCA would be carried out in the future the scope of judicial review does not cover potential
breaches of discretion but only actual occurrences or blatantly illegal provisions. Hence, we cannot
invalidate EDCA on the basis of the potentially abusive use of its provisions.

The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA or
the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248

As previously mentioned, these points shall be addressed fully and individually in the latter analysis of
EDCA's provisions. However, it must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily expressed word-for-word in the mother treaty.
This concern shall be further elucidated in this Decision.

902
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that
may be construed as a restriction on or modification of obligations found in existing statues, including the
jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that EDCA contains such
restrictions or modifications.249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA
ensure Philippine jurisdiction in all instances contemplated by both agreements, with the exception of
those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes are
assumed by the government as will be discussed later on. This fact does not, therefore, produce a
diminution of jurisdiction on the part of the Philippines, but rather a recognition of sovereignty and the
rights that attend it, some of which may be waived as in the cases under Articles III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and the
VFA, which are the two treaties from which EDCA allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S. personnel and
(2) U.S. contractors

The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains that
EDCA articulates the principle of defensive preparation embodied in Article II of the MDT; and seeks to
enhance the defensive, strategic, and technological capabilities of both parties pursuant to the objective
of the treaty to strengthen those capabilities to prevent or resist a possible armed attack. Respondent
also points out that EDCA simply implements Article I of the VFA, which already allows the entry of U.S.
troops and personnel into the country. Respondent stresses this Court's recognition in Lim v. Executive
Secretary that U.S. troops and personnel are authorized to conduct activities that promote the goal of
maintaining and developing their defense capability.

Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT. According
to them, the treaty does not specifically authorize the entry of U.S. troops in the country in order to
maintain and develop the individual and collective capacities of both the Philippines and the U.S. to resist
an armed attack. They emphasize that the treaty was concluded at a time when there was as yet no
specific constitutional prohibition on the presence of foreign military forces in the country.

Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the specific
purpose of combined military exercises with their Filipino counterparts. They stress that, in contrast, U.S.

903
troops are allowed under EDCA to perform activities beyond combined military exercises, such as those
enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of permanence in the
presence of U.S. troops in the country, since the effectivity of EDCA is continuous until terminated. They
proceed to argue that while troops have a "rotational" presence, this scheme in fact fosters their
permanent presence.

a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under the
VFA

We shall first deal with the recognition under EDCA of the presence in the country of three distinct classes
of individuals who will be conducting different types of activities within the Agreed Locations: (1) U.S.
military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to them as
follows:

"United States personnel" means United States military and civilian personnel temporarily in the territory
of the Philippines in connection with activities approved by the Philippines, as those terms are defined in
the VFA.252

"United States forces" means the entity comprising United States personnel and all property, equipment,
and materiel of the United States Armed Forces present in the territory of the Philippines.253

"United States contractors" means companies and firms, and their employees, under contract or
subcontract to or on behalf of the United States Department of Defense. United States contractors are
not included as part of the definition of United States personnel in this Agreement, including within the
context of the VFA.254

United States forces may contract for any materiel, supplies, equipment, and services (including
construction) to be furnished or undertaken in the territory of the Philippines without restriction as to
choice of contractor, supplier, or person who provides such materiel, supplies, equipment, or services.
Such contracts shall be solicited, awarded, and administered in accordance with the laws and regulations
of the United States.255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with the entry
into the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and II(4)257 speak of
"the right to access and use" the Agreed Locations, their wordings indicate the presumption that these
groups have already been allowed entry into Philippine territory, for which, unlike the VFA, EDCA has no
specific provision. Instead, Article II of the latter simply alludes to the VFA in describing U.S. personnel, a

904
term defined under Article I of the treaty as follows:

As used in this Agreement, "United States personnel" means United States military and civilian personnel
temporarily in the Philippines in connection with activities approved by the Philippine Government.
Within this definition:

1. The term "military personnel" refers to military members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.

2. The term "civilian personnel" refers to individuals who are neither nationals of nor ordinarily resident
in the Philippines and who are employed by the United States armed forces or who are accompanying the
United States armed forces, such as employees of the American Red Cross and the United Services
Organization.258

Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:

1. The Government of the Philippines shall facilitate the admission of United States personnel and their
departure from the Philippines in connection with activities covered by this agreement.

2. United States military personnel shall be exempt from passport and visa regulations upon entering and
departing the Philippines.

3. The following documents only, which shall be required in respect of United States military personnel
who enter the Philippines; xx xx.

4. United States civilian personnel shall be exempt from visa requirements but shall present, upon
demand, valid passports upon entry and departure of the Philippines. (Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian personnel
to be "temporarily in the Philippines," so long as their presence is "in connection with activities approved
by the Philippine Government." The Philippines, through Article III, even guarantees that it shall facilitate
the admission of U.S. personnel into the country and grant exemptions from passport and visa regulations.
The VFA does not even limit their temporary presence to specific locations.

905
Based on the above provisions, the admission and presence of U.S. military and civilian personnel in
Philippine territory are already allowed under the VFA, the treaty supposedly being implemented by
EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to identify the locations
in which U.S. personnel may perform allowed activities pursuant to the VFA. As the implementing
agreement, it regulates and limits the presence of U.S. personnel in the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory; their
entry must be sourced from extraneous Philippine statutes and regulations for the admission of alien
employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This does
not mean, though, that the recognition of their presence under EDCA is ipso facto an amendment of the
treaty, and that there must be Senate concurrence before they are allowed to enter the country.

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles III
and IV, in fact, merely grant them the right of access to, and the authority to conduct certain activities
within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S. contractors from the
coverage of the VFA, they shall not be granted the same entry accommodations and privileges as those
enjoyed by U.S. military and civilian personnel under the VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is "a
matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are accorded entry accommodations,
U.S. contractors are subject to Philippine immigration laws.261 The latter must comply with our visa and
passport regulations262 and prove that they are not subject to exclusion under any provision of Philippine
immigration laws.263 The President may also deny them entry pursuant to his absolute and unqualified
power to prohibit or prevent the admission of aliens whose presence in the country would be inimical to
public interest.264

In the same vein, the President may exercise the plenary power to expel or deport U.S. contractors265 as
may be necessitated by national security, public safety, public health, public morals, and national
interest.266 They may also be deported if they are found to be illegal or undesirable aliens pursuant to
the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of the VFA
requires a request for removal from the Philippine government before a member of the U.S. personnel
may be "dispos[ed] xx x outside of the Philippines."

906
c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in furtherance
of the MDT and the VFA

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the
activities in which U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-
help and mutual aid will maintain and develop their individual and collective capacity to resist armed
attack.

Article III

The Parties, through their Foreign Ministers or their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened by external armed attack
in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the
Philippines;

907
Considering that cooperation between the United States and the Republic of the Philippines promotes
their common security interests;

xxx

Article I - Definitions

As used in this Agreement, "United States personnel" means United States military and civilian personnel
temporarily in the Philippines in connection with activities approved by the Philippine Government.
Within this definition: xx x

Article II - Respect for Law

It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to
abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government of the United States shall take all measures within its
authority to ensure that this is done.

Article VII - Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into or
acquired in the Philippines by or on behalf of the United States armed forces in connection with activities
to which this agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title
to such property shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges. x x x.

Article VIII - Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of
the Government of the Philippines in accordance with procedures stipulated in implementing
arrangements.

908
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of
the Government of the Philippines. The movement of vessels shall be in accordance with international
custom and practice governing such vessels, and such agreed implementing arrangements as necessary.
x x x (Emphases Supplied)

Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine Government."
To determine the parameters of these implementing arrangements and activities, we referred to the
content, purpose, and framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage in joint
activities, so that they can maintain and develop their defense capabilities. The wording itself evidently
invites a reasonable construction that the joint activities shall involve joint military trainings, maneuvers,
and exercises. Both the interpretation269 and the subsequent practice270 of the parties show that the
MDT independently allows joint military exercises in the country. Lim v. Executive Secretary271 and
Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities that seek to enhance and
develop the strategic and technological capabilities of the parties to resist an armed attack, "fall squarely
under the provisions of the RP-US MDT."273 In Lim, the Court especially noted that the Philippines and
the U.S. continued to conduct joint military exercises even after the expiration of the MBA and even
before the conclusion of the VFA.274 These activities presumably related to the Status of Forces
Agreement, in which the parties agreed on the status to be accorded to U.S. military and civilian personnel
while conducting activities in the Philippines in relation to the MDT.275

Further, it can be logically inferred from Article V of the MDT that these joint activities may be conducted
on Philippine or on U.S. soil. The article expressly provides that the term armed attack includes "an armed
attack on the metropolitan territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific." Surely, in
maintaining and developing our defense capabilities, an assessment or training will need to be performed,
separately and jointly by self-help and mutual aid, in the territories of the contracting parties. It is
reasonable to conclude that the assessment of defense capabilities would entail understanding the
terrain, wind flow patterns, and other environmental factors unique to the Philippines.

It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable areas
would be part of the training of the parties to maintain and develop their capacity to resist an actual
armed attack and to test and validate the defense plan of the Philippines. It is likewise reasonable to
imagine that part of the training would involve an analysis of the effect of the weapons that may be used
and how to be prepared for the eventuality. This Court recognizes that all of this may require training in
the area where an armed attack might be directed at the Philippine territory.

909
The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines is
"in connection with activities approved by the Philippine Government." While the treaty does not
expressly enumerate or detail the nature of activities of U.S. troops in the country, its Preamble makes
explicit references to the reaffirmation of the obligations of both countries under the MDT. These
obligations include the strengthening of international and regional security in the Pacific area and the
promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the
Philippine Government" under Article I of the VFA was intended to be ambiguous in order to afford the
parties flexibility to adjust the details of the purpose of the visit of U.S. personnel.276 In ruling that the
Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the treaty, this Court
explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
"activities" arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history
and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities
- as opposed to combat itself- such as the one subject of the instant petition, are indeed authorized.
(Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national defense and security
further explains the wide range and variety of activities contemplated in the VFA, and how these activities
shall be identified:277

These joint exercises envisioned in the VFA are not limited to combat-related activities; they have a wide
range and variety. They include exercises that will reinforce the AFP's ability to acquire new techniques of
patrol and surveillance to protect the country's maritime resources; sea-search and rescue operations to
assist ships in distress; and disaster-relief operations to aid the civilian victims of natural calamities, such

910
as earthquakes, typhoons and tidal waves.

xxxx

Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and
equipment repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual
Defense Board. It is at the level of the Mutual Defense Board-which is headed jointly by the Chief of Staff
of the AFP and the Commander in Chief of the U.S. Pacific Command-that the VFA exercises are planned.
Final approval of any activity involving U.S. forces is, however, invariably given by the Philippine
Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will be conducted between
the armed forces of the U.S. and the Philippines. The VFA regulates and provides the legal framework for
the presence, conduct and legal status of U.S. personnel while they are in the country for visits, joint
exercises and other related activities. (Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the Senate committees on foreign
relations and on national defense and security, and the ruling of this Court in Lim is that the "activities"
referred to in the treaty are meant to be specified and identified infurther agreements. EDCA is one such
agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel
referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform "activities approved by
the Philippines, as those terms are defined in the VFA"278 and clarifies that these activities include those
conducted within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and
disaster relief activities; and such other activities as may be agreed upon by the Parties279

2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces and materiel; and such other
activities as the Parties may agree280

911
3. Exercise of operational control over the Agreed Locations for construction activities and other types of
activity, including alterations and improvements thereof281

4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their operational
control or defense, including the adoption of apfropriate measures to protect U.S. forces and
contractors282

5. Use of water, electricity, and other public utilities283

6. Operation of their own telecommunication systems, including the utilization of such means and services
as are required to ensure the full ability to operate telecommunication systems, as well as the use of the
necessary radio spectrum allocated for this purpose284

According to Article I of EDCA, one of the purposes of these activities is to maintain and develop, jointly
and by mutual aid, the individual and collective capacities of both countries to resist an armed attack. It
further states that the activities are in furtherance of the MDT and within the context of the VFA.

We note that these planned activities are very similar to those under the Terms of Reference285
mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform the following: (a)
participate in training exercises; (b) retain command over their forces; (c) establish temporary structures
in the country; (d) share in the use of their respective resources, equipment and other assets; and (e)
exercise their right to self-defense. We quote the relevant portion of the Terms and Conditions as
follows:286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as those
for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during
the Exercise.

The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the

912
Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises
(FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall
authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions
of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month
Exercise period.

The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine
efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu
will be for support of the Exercise.

xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US
Forces with the primary objective of enhancing the operational capabilities of both forces to combat
terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

913
2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws and regulations, in
the use of their resources, equipment and other assets. They will use their respective logistics channels. x
x x. (Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we find
that EDCA has remained within the parameters set in these two treaties. Just like the Terms of Reference
mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be in the form of
executive agreements.

Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with
the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of EDCA
has an initial term of 10 years, a term automatically renewed unless the Philippines or the U.S. terminates
the agreement. According to petitioners, such length of time already has a badge of permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and
Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas EDCA
allows an unlimited period for U.S. forces to stay in the Philippines.288

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this
method does not create a permanent obligation.

Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA does
not include a maximum time limit with respect to the presence of U.S. personnel in the country. We
construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate in
the entire text of the VFA as an implicit grant to the President of a margin of appreciation in determining
the duration of the "temporary" presence of U.S. personnel in the country.

914
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.289 However, this argument has not taken root by virtue of a simple glance at its provisions on the
effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access to
facilities for efficiency. As Professor Aileen S.P. Baviera notes:

The new EDCA would grant American troops, ships and planes rotational access to facilities of the Armed
Forces of the Philippines – but not permanent bases which are prohibited under the Philippine
Constitution - with the result of reducing response time should an external threat from a common
adversary crystallize.290

EDCA is far from being permanent in nature compared to the practice of states as shown in other defense
cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense agreement provides the
following:

This Agreement is concluded for an indefinite period and shall enter into force in accordance with the
internal laws of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be terminated by written
notification by either Party and in that event it terminates 2 years after the receipt of the notification.
(emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall become
effective on the date of the last signature affixed below and shall remain in force until terminated by the
Parties, provided that it may be terminated by either Party upon 180 days written notice of its intention
to do so to the other Party. (emphasis supplied)

On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer initial
term:

915
3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force, but may be
terminated by either Party at any time upon one year's written notice to the other Party through
diplomatic channels. (emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of that is
provided in the latter agreement. This means that EDCA merely follows the practice of other states in not
specifying a non-extendible maximum term. This practice, however, does not automatically grant a badge
of permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that its effectivity is for an
initial term of 10 years, which is far shorter than the terms of effectivity between the U.S. and other states.
It is simply illogical to conclude that the initial, extendible term of 10 years somehow gives EDCA provisions
a permanent character.

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-bound
to defend our national sovereignty and territorial integrity;291 who, as chief architect of our foreign
relations, is the head policymaker tasked to assess, ensure, and protect our national security and
interests;292 who holds the most comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who has unrestricted access to
highly classified military intelligence data294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer period
of military training is needed, the President must be given ample discretion to adopt necessary measures
including the flexibility to set an extended timetable.

Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the
President may not always be able to candidly and openly discuss the complete situation being faced by
the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls for crafting
programs and setting timelines for approved activities. These activities may be necessary for maintaining
and developing our capacity to resist an armed attack, ensuring our national sovereignty and territorial
integrity, and securing our national interests. If the Senate decides that the President is in the best position
to define in operational terms the meaning of temporary in relation to the visits, considered individually
or in their totality, the Court must respect that policy decision. If the Senate feels that there is no need to
set a time limit to these visits, neither should we.

Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary"
nature of the visits of U.S. personnel does not suggest that the duration to which the President may agree
is unlimited. Instead, the boundaries of the meaning of the term temporary in Article I of the treaty must
be measured depending on the purpose of each visit or activity.295 That purpose must be analyzed on a
case-by-case basis depending on the factual circumstances surrounding the conclusion of the
implementing agreement. While the validity of the President's actions will be judged under less stringent
standards, the power of this Court to determine whether there was grave abuse of discretion remains

916
unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were legitimately
permitted to enter the country independent of EDCA - are subject to relevant Philippine statutes and
regulations and must be consistent with the MDT and the VFA

Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private
security contractors in other countries. They claim that these contractors - one of which has already been
operating in Mindanao since 2004 - have been implicated in incidents or scandals in other parts of the
globe involving rendition, torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they are operating.

Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following activities:

1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces and materiel; and such other
activities as the Parties may agree297

2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such equipment, supplies and materiel298

3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, regulations,
and policies299

EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This
means that certain privileges denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security300 and carrying, owning, and possessing firearms301 are illegal for foreign
civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign
Investment Negative list,302 the Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that
cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487;303 and No. 15, which
regulates contracts for the construction of defense-related structures based on Commonwealth Act No.

917
541.

Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate and
civil requirements imposed by the law, depending on the entity's corporate structure and the nature of
its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S. contractors
has been clear even to some of the present members of the Senate.

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the waters
off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on
Environment and Natural Resources chairperson claimed environmental and procedural violations by the
contractor.305 The U.S. Navy investigated the contractor and promised stricter guidelines to be imposed
upon its contractors.306 The statement attributed to Commander Ron Steiner of the public affairs office
of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws - is of particular
relevance. The statement acknowledges not just the presence of the contractors, but also the U.S. position
that these contractors are bound by the local laws of their host state. This stance was echoed by other
U.S. Navy representatives.307

This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the
purpose of fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all, even to the
U.S.

As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their
activities must be consistent with Philippine laws and regulations and pursuant to the MDT and the VFA.

While we recognize the concerns of petitioners, they do not give the Court enough justification to strike
down EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take judicial notice
of claims aired in news reports, "not because of any issue as to their truth, accuracy, or impartiality, but
for the simple reason that facts must be established in accordance with the rules of evidence."308 What
is more, we cannot move one step ahead and speculate that the alleged illegal activities of these
contractors in other countries would take place in the Philippines with certainty. As can be seen from the
above discussion, making sure that U.S. contractors comply with Philippine laws is a function of law
enforcement. EDCA does not stand in the way of law enforcement.

Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the VFA.
As visiting aliens, their entry, presence, and activities are subject to all laws and treaties applicable within

918
the Philippine territory. They may be refused entry or expelled from the country if they engage in illegal
or undesirable activities. There is nothing that prevents them from being detained in the country or being
subject to the jurisdiction of our courts. Our penal laws,309 labor laws,310 and immigrations laws311
apply to them and therefore limit their activities here. Until and unless there is another law or treaty that
specifically deals with their entry and activities, their presence in the country is subject to unqualified
Philippine jurisdiction.

EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in the
Philippines

Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through the
"euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article II(4) of
EDCA, they point out that these locations are actually military bases, as the definition refers to facilities
and areas to which U.S. military forces have access for a variety of purposes. Petitioners claim that there
are several badges of exclusivity in the use of the Agreed Locations by U.S. forces. First, Article V(2) of
EDCA alludes to a "return" of these areas once they are no longer needed by U.S. forces, indicating that
there would be some transfer of use. Second, Article IV(4) ofEDCA talks about American forces'
unimpeded access to the Agreed Locations for all matters relating to the prepositioning and storage of
U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S. forces to use
public utilities and to operate their own telecommunications system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called

"badges of exclusivity," despite the presence of contrary provisions within the text of the agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is within
the context of a lengthy provision. The provision as a whole reads as follows:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including
non-relocatable structures and assemblies constructed, modified, or improved by the United States, once
no longer required by United States forces for activities under this Agreement. The Parties or the
Designated Authorities shall consult regarding the terms of return of any Agreed Locations, including
possible compensation for improvements or construction.

The context of use is "required by United States forces for activities under this Agreement." Therefore,
the return of an Agreed Location would be within the parameters of an activity that the Mutual Defense

919
Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus, possession by the U.S.
prior to its return of the Agreed Location would be based on the authority given to it by a joint body co-
chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with representatives from the Philippines'
Department of National Defense and Department of Foreign Affairs sitting as members."313 The terms
shall be negotiated by both the Philippines and the U.S., or through their Designated Authorities. This
provision, seen as a whole, contradicts petitioners' interpretation of the return as a "badge of exclusivity."
In fact, it shows the cooperation and partnership aspect of EDCA in full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article
IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations for all
matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including
delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and
materiel."

At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in these
equipment, supplies, and materiel through the MDB and SEB security mechanism. These items are owned
by the U.S.,314 are exclusively for the use of the U.S.315 and, after going through the joint consent
mechanisms of the MDB and the SEB, are within the control of the U.S.316 More importantly, before
these items are considered prepositioned, they must have gone through the process of prior authorization
by the MDB and the SEB and given proper notification to the AFP.317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership, use,
and control of the U.S. over its own equipment, supplies, and materiel and must have first been allowed
by the joint mechanisms in play between the two states since the time of the MDT and the VFA. It is not
the use of the Agreed Locations that is exclusive per se; it is mere access to items in order to exercise the
rights of ownership granted by virtue of the Philippine Civil Code.318

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow similar
activities within the area; (b) provide for the same "species of ownership" over facilities; and (c) grant
operational control over the entire area. Finally, they argue320 that EDCA is in fact an implementation of
the new defense policy of the U.S. According to them, this policy was not what was originally intended
either by the MDT or by the VFA.

On these points, the Court is not persuaded.

920
The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed Locations specifically for construction
activities. They do not allow the overarching power to operate, maintain, utilize, occupy, garrison, and
control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of every activity,
including construction, by giving the MDB and the SEB the power to determine the details of all activities
such as, but not limited to, operation, maintenance, utility, occupancy, garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.323 On the other hand, for movable properties brought into
the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the MBA
dictates that the U.S. retains ownership over immovable and movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the
Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable property
full rights over that property, even if located in another person's property.324

The parallelism, however, ends when the situation involves facilities that can be considered immovable.
Under the MBA, the U.S. retains ownership if it paid for the facility.325 Under EDCA, an immovable is
owned by the Philippines, even if built completely on the back of U.S. funding.326 This is consistent with
the constitutional prohibition on foreign land ownership.327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be
considered before the constitutional restriction is violated. Thus, petitioners' points on operational
control will be given more attention in the discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that
would allay suspicion that EDCA is but a disguised version of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to do
under the 1947 MBA

The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under EDCA

921
for a number of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory occupied
by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over any part of the
Philippines in which its forces or equipment may be found. Below is a comparative table between the old
treaty and EDCA:

1947 MBA/ 1946 Treaty of General Relations EDCA

1947 MBA, Art. I(1):

The Government of the Republic of the Philippines (hereinafter referred to as the Philippines) grants to
the Government of the United States of America (hereinafter referred to as the United States) the right
to retain the use of the bases in the Philippines listed in Annex A attached hereto.

1947 MBA, Art. XVII(2):

All buildings and structures which are erected by the United States in the bases shall be the property of
the United States and may be removed by it before the expiration of this Agreement or the earlier
relinquishment of the base on which the structures are situated. There shall be no obligation on the part
of the Philippines or of the United States to rebuild or repair any destruction or damage inflicted from any
cause whatsoever on any of the said buildings or structures owned or used by the United States in the
bases. x x x x.

1946 Treaty of Gen. Relations, Art. I:

The United States of America agrees to withdraw and surrender, and does hereby withdraw and
surrender, all rights of possession, supervision, jurisdiction, control or sovereignty existing and exercised
by the United States of America in and over the territory and the people of the Philippine Islands, except
the use of such bases, necessary appurtenances to such bases, and the rights incident thereto, as the
United States of America, by agreement with the Republic of the Philippines may deem necessary to retain
for the mutual protection of the Republic of the Philippines and of the United States of America. x x x.

EDCA, preamble:

922
Affirming that the Parties share an understanding for the United States not to establish a permanent
military presence or base in the territory of the Philippines;

xxxx

Recognizing that all United States access to and use of facilities and areas will be at the invitation of the
Philippines and with full respect for the Philippine Constitution and Philippine laws;

xxxx

EDCA, Art. II(4):

"Agreed Locations" means facilities and areas that are provided by the Government of the Philippines
through the AFP and that United States forces, United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in
an annex to be appended to this Agreement, and may be further described in implementing
arrangements.

EDCA, Art. V:

1. The Philippines shall retain ownership of and title to Agreed Locations.

xxxx

4. All buildings, non-relocatable structures, and assemblies affixed to the land in the Agreed Locations,
including ones altered or improved by United States forces, remain the property of the Philippines.
Permanent buildings constructed by United States forces become the property of the Philippines, once
constructed, but shall be used by United States forces until no longer required by United States forces.

Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when it

923
came to deciding whether to expand or to increase the number of bases, as the Philippines may be
compelled to negotiate with the U.S. the moment the latter requested an expansion of the existing bases
or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the Philippines.

1947 MBA/ 1946 Treaty of General Relations EDCA

1947 MBA, Art.I(3):

The Philippines agree to enter into negotiations with the United States at the latter's request, to permit
the United States to expand such bases, to exchange such bases for other bases, to acquire additional
bases, or relinquish rights to bases, as any of such exigencies may be required by military necessity.

1946 Treaty of Gen. Relations, Art. I:

The United States of America agrees to withdraw and surrender, and does hereby withdraw and
surrender, all rights of possession, supervision, jurisdiction, control or sovereignty existing and exercised
by the United States of America in and over the territory and the people of the Philippine Islands, except
the use of such bases, necessary appurtenances to such bases, and the rights incident thereto, as the
United States of America, by agreement with the Republic of the Philippines may deem necessary to retain
for the mutual protection of the Republic of the Philippines and of the United States of America. x x x.

EDCA, preamble:

Recognizing that all United States access to and use of facilities and areas will be at the invitation of the
Philippines and with full respect for the Philippine Constitution and Philippine laws;

xxxx

EDCA. Art. II(4):

"Agreed Locations" means facilities and areas that are provided by the Government of the Philippines
through the AFP and that United States forces, United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in
an annex to be appended to this Agreement, and may be further described in implementing
arrangements.

924
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations. On the
other hand, given that the U.S. had complete control over its military bases under the 1947 MBA, the
treaty did not provide for any express recognition of the right of access of Philippine authorities. Without
that provision and in light of the retention of U.S. sovereignty over the old military bases, the U.S. could
effectively prevent Philippine authorities from entering those bases.

1947 MBA EDCA

No equivalent provision.

EDCA, Art. III(5):

The Philippine Designated Authority and its authorized representative shall have access to the entire area
of the Agreed Locations. Such access shall be provided promptly consistent with operational safety and
security requirements in accordance with agreed procedures developed by the Parties.

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the establishment,
use, operation, defense, and control of military bases, including the limits of territorial waters and air
space adjacent to or in the vicinity of those bases. The only standard used in determining the extent of its
control was military necessity. On the other hand, there is no such grant of power or authority under
EDCA. It merely allows the U.S. to exercise operational control over the construction of Philippine-owned
structures and facilities:

1947 MBA EDCA

1947 MBA, Art.I(2):

The Philippines agrees to permit the United States, upon notice to the Philippines, to use such of those
bases listed in Annex B as the United States determines to be required by military necessity.

1947 MBA, Art. III(1):

It is mutually agreed that the United States shall have the rights, power and authority within the bases
which are necessary for the establishment, use, operation and defense thereof or appropriate for the
control thereof and all the rights, power and authority within the limits of territorial waters and air space

925
adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate
for their control.

EDCA, Art. III(4):

The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the
MDB and SEB, operational control of Agreed Locations for construction activities and authority to
undertake such activities on, and make alterations and improvements to, Agreed Locations. United States
forces shall consult on issues regarding such construction, alterations, and improvements based on the
Parties' shared intent that the technical requirements and construction standards of any such projects
undertaken by or on behalf of United States forces should be consistent with the requirements and
standards of both Parties.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for additional
staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen below:

1947 MBA EDCA

1947 MBA, Art. VI:

The United States shall, subject to previous agreement with the Philippines, have the right to use land and
coastal sea areas of appropriate size and location for periodic maneuvers, for additional staging areas,
bombing and gunnery ranges, and for such intermediate airfields as may be required for safe and efficient
air operations. Operations in such areas shall be carried on with due regard and safeguards for the public
safety.

1947 MBA, Art.I(2):

The Philippines agrees to permit the United States, upon notice to the Philippines, to use such of those
bases listed in Annex B as the United States determines to be required by military necessity.

EDCA, Art. III(1):

With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United
States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United

926
States forces may conduct the following activities with respect to Agreed Locations: training; transit;
support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning
of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the
Parties may agree.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not have
any right, power, or authority to do so under EDCA.

1947 MBA EDCA

1947 MBA, Art. 111(2)(c)

Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x to control
(including the right to prohibit) in so far as may be required for the efficient operation and safety of the
bases, and within the limits of military necessity, anchorages, moorings, landings, takeoffs, movements
and operation of ships and water-borne craft, aircraft and other vehicles on water, in the air or on land
comprising

No equivalent provision.

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including roads,
ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and deepen the
harbors, channels, entrances, and anchorages; and to construct or maintain necessary roads and bridges
that would afford it access to its military bases.

1947 MBA EDCA

1947 MBA, Art. III(2)(b):

Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x to improve
and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary
roads and bridges affording access to the bases.

EDCA, Art. III(2):

927
When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary
access by United States forces to public land and facilities (including roads, ports, and airfields), including
those owned or controlled by local governments, and to other land and facilities (including roads, ports,
and airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities,
services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes,
rivers, and streams in the Philippines in the same manner that Philippine military forces enjoyed that right.
No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public
land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII:

It is mutually agreed that the United States may employ and use for United States military forces any and
all public utilities, other services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers and streams in the Philippines under conditions no less favorable than those
that may be applicable from time to time to the military forces of the Philippines.

EDCA, Art. III(2):

When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary
access by United States forces to public land and facilities (including roads, ports, and airfields), including
those owned or controlled by local governments, and to other land and facilities (including roads, ports,
and airfields).

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain,
and employ any type of facility, weapon, substance, device, vessel or vehicle, or system unlike in the old
treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the authority to undertake
construction, alteration, or improvements on the Philippine-owned Agreed Locations.

1947 MBA EDCA

1947 MBA, Art. III(2)(e):

928
Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x to
construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device,
vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or
appropriate, including meteorological systems, aerial and water navigation lights, radio and radar
apparatus and electronic devices, of any desired power, type of emission and frequency.

EDCA, Art. III(4):

The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the
MDB and SEB, operational control of Agreed Locations for construction activities and authority to
undertake such activities on, and make alterations and improvements to, Agreed Locations. United States
forces shall consult on issues regarding such construction, alterations, and improvements based on the
Parties' shared intent that the technical requirements and construction standards of any such projects
undertaken by or on behalf of United States forces should be consistent with the requirements and
standards of both Parties.

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real
property belonging to any private person. The old military bases agreement gave this right to the U.S. as
seen below:

1947 MBA EDCA

1947 MBA, Art. XXII(l):

Whenever it is necessary to acquire by

condemnation or expropriation proceedings real property belonging to any private persons, associations
or corporations located in bases named in Annex A and Annex B in order to carry out the purposes of this
Agreement, the Philippines will institute and prosecute such condemnation or expropriation proceedings
in accordance with the laws of the Philippines. The United States agrees to reimburse the Philippines for
all the reasonable expenses, damages and costs therebv incurred, including the value of the property as
determined by the Court. In addition, subject to the mutual agreement of the two Governments, the
United States will reimburse the Philippines for the reasonable costs of transportation and removal of any
occupants displaced or ejected by reason of the condemnation or expropriation.

929
No equivalent provision.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine nationals who
are under its employ, together with their families, in connection with the construction, maintenance, or
operation of the bases. EDCA strictly adheres to the limits under the VFA.

1947 MBA EDCA

1947 MBA, Art. XI(l):

It is mutually agreed that the United States shall have the right to bring into the Philippines members of
the United States military forces and the United States nationals employed by or under a contract with
the United States together with their families, and technical personnel of other nationalities (not being
persons excluded by the laws of the Philippines) in connection with the construction, maintenance, or
operation of the bases. The United States shall make suitable arrangements so that such persons may be
readily identified and their status established when necessary by the Philippine authorities. Such persons,
other than members of the United States armed forces in uniform, shall present their travel documents
to the appropriate Philippine authorities for visas, it being understood that no objection will be made to
their travel to the Philippines as non-immigrants.

EDCA, Art. II:

1. "United States personnel" means United States military and civilian personnel temporarily in the
territory of the Philippines in connection with activities approved by the Philippines, as those terms are
defined in the VFA.

x xx x

3. "United States contractors" means companies and firms, and their employees, under contract or
subcontract to or on behalf of the United States Department of Defense. United States contractors are
not included as part of the definition of United States personnel in this Agreement, including within the
context of the VFA.

930
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any person
within the Agreed Locations, unlike in the former military bases:

1947 MBA EDCA

1947 MBA, Art. XIII(l)(a):

The Philippines consents that the United

States shall have the right to exercise jurisdiction over the following offenses: (a) Any offense committed
by any person within any base except where the offender and offended parties are both Philippine citizens
(not members of the armed forces of the United States on active duty) or the offense is against the security
of the Philippines.

No equivalent provision.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is free of
customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the PX store
has become the cultural icon of U.S. military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l):

It is mutually agreed that the United States

shall have the right to establish on bases, free of all licenses; fees; sales, excise or other taxes, or imposts;
Government agencies, including concessions, such as sales commissaries and post exchanges; messes and
social clubs, for the exclusive use of the United States military forces and authorized civilian personnel
and their families. The merchandise or services sold or dispensed by such agencies shall be free of all
taxes, duties and inspection by the Philippine authorities. Administrative measures shall be taken by the
appropriate authorities of the United States to prevent the resale of goods which are sold under the
provisions of this Article to persons not entitled to buy goods at such agencies and, generally, to prevent
abuse of the privileges granted under this Article. There shall be cooperation between such authorities
and the Philippines to this end.

931
No equivalent provision.

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the
1987 Constitution was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and
"facilities" is required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital in
determining whether EDCA breached the constitutional restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the decree
as supported by Article 281 of the Revised Penal Code, which itself prohibits the act of trespass.

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means any
military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in
the Philippines."

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986
Constitutional Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

932
400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of Policies:

Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the sound
and balanced conversion into alternative productive uses of the Clark and Subic military reservations and
their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter Station, San Miguel Naval
Communications Station and Capas Relay Station), to raise funds by the sale of portions of Metro Manila
military camps, and to apply said funds as provided herein for the development and conversion to
productive civilian use of the lands covered under the 194 7 Military Bases Agreement between the
Philippines and the United States of America, as amended.330

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which
specifically restricts, among others, foreign military facilities or bases. At the time of its crafting of the
Constitution, the 1986 Constitutional Commission had a clear idea of what exactly it was restricting. While
the term "facilities and bases" was left undefined, its point of reference was clearly those areas covered
by the 1947 MBA as amended.

Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology and
geopolitics has surpassed the understanding of the Philippine people in 1986. The last direct military
action of the U.S. in the region was the use of Subic base as the staging ground for Desert Shield and
Desert Storm during the Gulf War.331 In 1991, the Philippine Senate rejected the successor treaty of the
1947 MBA that would have allowed the continuation of U.S. bases in the Philippines.

Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
consideration the subsisting agreements between both parties, the rejection of the 1991 proposal, and a

933
concrete understanding of what was constitutionally restricted. This trend birthed the VFA which, as
discussed, has already been upheld by this Court.

The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed, shall have the right to
access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be
appended to this Agreement, and may be further described in implementing arrangements.332

Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership of
and title to the Agreed Locations means that EDCA is "consistent with Article II of the VFA which recognizes
Philippine sovereignty and jurisdiction over locations within Philippine territory.333

By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective, foreign
military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes Senate
concurrence a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to
"conduct the following activities: "training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation
of personnel; communications; prepositioning of equipment, supplies and materiel; deploying forces and
materiel; and such other activities as the Parties may agree."

This creation of EDCA must then be tested against a proper interpretation of the Section 25 restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible military
bases and facilities

Section 25 does not define what is meant by a "foreign military facility or base." While it specifically alludes

934
to U.S. military facilities and bases that existed during the framing of the Constitution, the provision was
clearly meant to apply to those bases existing at the time and to any future facility or base. The basis for
the restriction must first be deduced from the spirit of the law, in order to set a standard for the
application of its text, given the particular historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective
wisdom, the intent of Section 25. Their speeches are rich with history and wisdom and present a clear
picture of what they considered in the crafting the provision.

SPEECH OF COMMISSIONER REGALADO334

xxxx

We have been regaled here by those who favor the adoption of the anti-bases provisions with what
purports to be an objective presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore the inequity in their inception as
well as their implementation, as to seriously reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after World War II are quoted in support of the
proposition on neutrality; regrettably, the implication is that the same remains valid today, as if the world
and international activity stood still for the last 40 years.

We have been given inspired lectures on the effect of the presence of the military bases on our
sovereignty - whether in its legal or political sense is not clear - and the theory that any country with
foreign bases in its territory cannot claim to be fully sovereign or completely independent. I was not aware
that the concepts of sovereignty and independence have now assumed the totality principle, such that a
willing assumption of some delimitations in the exercise of some aspects thereof would put that State in
a lower bracket of nationhood.

xxxx

We have been receiving a continuous influx of materials on the pros and cons on the advisability of having
military bases within our shores. Most of us who, only about three months ago, were just mulling the
prospects of these varying contentions are now expected, like armchair generals, to decide not only on
the geopolitical aspects and contingent implications of the military bases but also on their political, social,
economic and cultural impact on our national life. We are asked to answer a plethora of questions, such
as: 1) whether the bases are magnets of nuclear attack or are deterrents to such attack; 2) whether an
alliance or mutual defense treaty is a derogation of our national sovereignty; 3) whether criticism of us by

935
Russia, Vietnam and North Korea is outweighed by the support for us of the ASEAN countries, the United
States, South Korea, Taiwan, Australia and New Zealand; and 4) whether the social, moral and legal
problems spawned by the military bases and their operations can be compensated by the economic
benefits outlined in papers which have been furnished recently to all of us.335

xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of their
positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the proposed
declaration as a "golden," "unique" and "last" opportunity for Filipinos to assert their sovereign rights.
Unfortunately, I have never been enchanted by superlatives, much less for the applause of the moment
or the ovation of the hour. Nor do I look forward to any glorious summer after a winter of political
discontent. Hence, if I may join Commissioner Laurel, I also invoke a caveat not only against the tyranny
of labels but also the tyranny of slogans.336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of
foreign bases from the Philippines have been adequately treated by previous speakers. Let me, therefore,
just recapitulate the arguments adduced in favor of a foreign bases-free Philippines:

1. That every nation should be free to shape its own destiny without outside interference;

2. That no lasting peace and no true sovereignty would ever be achieved so long as there are foreign
military forces in our country;

3. That the presence of foreign military bases deprives us of the very substance of national sovereignty
and this is a constant source of national embarrassment and an insult to our national dignity and
selfrespect as a nation;

936
4. That these foreign military bases unnecessarily expose our country to devastating nuclear attacks;

5. That these foreign military bases create social problems and are designed to perpetuate the strangle-
hold of United States interests in our national economy and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our country of
jurisdiction over civil and criminal offenses committed within our own national territory and against
Filipinos;

7. That the bases agreements are colonial impositions and dictations upon our helpless country; and

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and void ab
initio, especially because they did not count the sovereign consent and will of the Filipino people.338

xxxx

In the real sense, Madam President, if we in the Commission could accommodate the provisions I have
cited, what is our objection to include in our Constitution a matter as priceless as the nationalist values
we cherish? A matter of the gravest concern for the safety and survival of this nation indeed deserves a
place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and the future of
generations to come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are found and whoever
owns them is that those are for killing people or for terrorizing humanity. This objective by itself at any

937
point in history is morally repugnant. This alone is reason enough for us to constitutionalize the ban on
foreign military bases and on nuclear weapons.341

SPEECH OF COMMISSIONER BACANI342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove the bases because even
if the bases are removed, the girls mired in poverty will look for their clientele elsewhere. The remedy to
the problem of prostitution lies primarily elsewhere - in an alert and concerned citizenry, a healthy
economy and a sound education in values.343

SPEECH OF COMMISSIONER JAMIR344

xxxx

One of the reasons advanced against the maintenance of foreign military bases here is that they impair
portions of our sovereignty. While I agree that our country's sovereignty should not be impaired, I also
hold the view that there are times when it is necessary to do so according to the imperatives of national
interest. There are precedents to this effect. Thus, during World War II, England leased its bases in the
West Indies and in Bermuda for 99 years to the United States for its use as naval and air bases. It was done
in consideration of 50 overaged destroyers which the United States gave to England for its use in the
Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as a naval
base in the Indian Ocean. About the same time, the United States obtained bases in Spain, Egypt and
Israel. In doing so, these countries, in effect, contributed to the launching of a preventive defense posture
against possible trouble in the Middle East and in the Indian Ocean for their own protection.345

SPEECH OF COMMISSIONER TINGSON346

xxxx

938
In the case of the Philippines and the other Southeast Asian nations, the presence of American troops in
the country is a projection of America's security interest. Enrile said that nonetheless, they also serve,
although in an incidental and secondary way, the security interest of the Republic of the Philippines and
the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in this Commission, namely:
It is ideal for us as an independent and sovereign nation to ultimately abrogate the RP-US military treaty
and, at the right time, build our own air and naval might.347

xxxx

Allow me to say in summation that I am for the retention of American military bases in the Philippines
provided that such an extension from one period to another shall be concluded upon concurrence of the
parties, and such extension shall be based on justice, the historical amity of the people of the Philippines
and the United States and their common defense interest.348

SPEECH OF COMMISSIONER ALONTO349

xxxx

Madam President, sometime ago after this Commission started with this task of framing a constitution, I
read a statement of President Aquino to the effect that she is for the removal of the U.S. military bases in
this country but that the removal of the U.S. military bases should not be done just to give way to other
foreign bases. Today, there are two world superpowers, both vying to control any and all countries which
have importance to their strategy for world domination. The Philippines is one such country.

Madam President, I submit that I am one of those ready to completely remove any vestiges of the days of
enslavement, but not prepared to erase them if to do so would merely leave a vacuum to be occupied by
a far worse type.350

SPEECH OF COMMISSIONER GASCON351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in
Indo-China, Central America, in South Africa - there has been escalation of war in some of these areas

939
because of foreign intervention which views these conflicts through the narrow prism of the East-West
conflict. The United States bases have been used as springboards for intervention in some of these
conflicts. We should not allow ourselves to be party to the warlike mentality of these foreign
interventionists. We must always be on the side of peace – this means that we should not always rely on
military solution.352

xxxx

x x x The United States bases, therefore, are springboards for intervention in our own internal affairs and
in the affairs of other nations in this region.

xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which
should logically be declared in black and white in our fundamental law of the land - the Constitution. Let
us express our desire for national sovereignty so we may be able to achieve national self-determination.
Let us express our desire for neutrality so that we may be able to follow active nonaligned independent
foreign policies. Let us express our desire for peace and a nuclear-free zone so we may be able to pursue
a healthy and tranquil existence, to have peace that is autonomous and not imposed. 353

xxxx

SPEECH OF COMMISSIONER TADEO354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang kahulugan
nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng
sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S.
military bases ay batong pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan ng patuloy na
paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically and culturally.
Para sa sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S.
military bases ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356

940
xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of domination and
subservience has clearly been defined these past weeks.

xxxx

So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's position
to enshrine in the Constitution a fundamental principle forbidding foreign military bases, troops or
facilities in any part of the Philippine territory as a clear and concrete manifestation of our inherent right
to national self-determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social cost
of allowing foreign countries to maintain military bases in our country. Previous speakers have dwelt on
this subject, either to highlight its importance in relation to the other issues or to gloss over its significance
and !llake this a part of future negotiations.357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the response
of the Filipino people against this condition and other conditions that have already been clearly and
emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the Constitution we
are drafting will have the following implications:

First, the failure of the Constitutional Commission to decisively respond to the continuing violation of our
territorial integrity via the military bases agreement which permits the retention of U.S. facilities within
the Philippine soil over which our authorities have no exclusive jurisdiction contrary to the accepted
definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the application of a
provision in the Bill of Rights that we have just drafted regarding equal application of the laws of the land
to all inhabitants, permanent or otherwise, within its territorial boundaries.

941
Third, the continued exercise by the United States of extraterritoriality despite the condemnations of such
practice by the world community of nations in the light of overwhelming international approval of
eradicating all vestiges of colonialism.358

xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be wielded
to force the United States government to concede to better terms and conditions concerning the military
bases agreement, including the transfer of complete control to the Philippine government of the U.S.
facilities, while in the meantime we have to suffer all existing indignities and disrespect towards our rights
as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially a question
of sovereignty which does not require in-depth studies or analyses and which this forum has, as a
constituent assembly drafting a constitution, the expertise and capacity to decide on except that it lacks
the political will that brought it to existence and now engages in an elaborate scheme of buck-passing.

xxxx

Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold and
defend our national sovereignty. National sovereignty is what the military bases issue is all about. It is only
the sovereign people exercising their national sovereignty who can design an independent course and
take full control of their national destiny.359

SPEECH OF COMMISSIONER P ADILLA360

xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on
neutrality, nuclear and bases-free country, some views stress sovereignty of the Republic and even invoke
survival of the Filipino nation and people.361

942
REBUTTAL OF COMMISSIONER NOLLEDO362

xxxx

The anachronistic and ephemeral arguments against the provisions of the committee report to dismantle
the American bases after 1991 only show the urgent need to free our country from the entangling alliance
with any power bloc.363

xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called RP-US
Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction as well as national
dignity and honor, that it goes against the UN policy of disarmament and that it constitutes unjust
intervention in our internal affairs.364 (Emphases Supplied)

The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities,
subject to the provisions of Section 25. It is thus important to read its discussions carefully. From these
discussions, we can deduce three legal standards that were articulated by the Constitutional Commission
Members. These are characteristics of any agreement that the country, and by extension this Court, must
ensure are observed. We can thereby determine whether a military base or facility in the Philippines,
which houses or is accessed by foreign military troops, is foreign or remains a Philippine military base or
facility. The legal standards we find applicable are: independence from foreign control, sovereignty and
applicable law, and national security and territorial integrity.

i. First standard: independence from foreign control

Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was aimed
at asserting Philippine independence from the U.S., as well as control over our country's territory and
military.

Under the Civil Code, there are several aspects of control exercised over property.

Property is classified as private or public.365 It is public if "intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of

943
similar character[,]" or "[t]hose which belong to the State, without being for public use, and are intended
for some public service or for the development of the national wealth. "366

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines.1avvphi1

Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."

Philippine civil law therefore accords very strong rights to the owner of property, even against those who
hold the property. Possession, after all, merely raises a disputable presumption of ownership, which can
be contested through normal judicial processes.367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the Philippine
govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access to and use of
these locations.369

The right of the owner of the property to allow access and use is consistent with the Civil Code, since the
owner may dispose of the property in whatever way deemed fit, subject to the limits of the law. So long
as the right of ownership itself is not transferred, then whatever rights are transmitted by agreement does
not completely divest the owner of the rights over the property, but may only limit them in accordance
with law.

Hence, even control over the property is something that an owner may transmit freely. This act does not
translate into the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, we stated that the constitutional
proscription on property ownership is not violated despite the foreign national's control over the
property.370

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under
its pertinent provisions, it is the Designated Authority of the Philippines that shall, when requested, assist
in facilitating transit or access to public land and facilities.371 The activities carried out within these
locations are subject to agreement as authorized by the Philippine govemment.372 Granting the U.S.
operational control over these locations is likewise subject to EDCA' s security mechanisms, which are
bilateral procedures involving Philippine consent and cooperation.373 Finally, the Philippine Designated

944
Authority or a duly designated representative is given access to the Agreed Locations.374

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation from
the point of view of the Philippine government, which balanced constitutional restrictions on foreign
military bases and facilities against the security needs of the country. In the 1947 MBA, the U.S. forces
had "the right, power and authority x x x to construct (including dredging and filling), operate, maintain,
utilize, occupy, garrison and control the bases."375 No similarly explicit provision is present in EDCA.

Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been
raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities
shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate. Merely
stating that the Philippines would retain ownership would do violence to the constitutional requirement
if the Agreed Locations were simply to become a less obvious manifestation of the U.S. bases that were
rejected in 1991.

When debates took place over the military provisions of the Constitution, the committee rejected a
specific provision proposed by Commissioner Sarmiento. The discussion illuminates and provides context
to the 1986 Constitutional Commission's vision of control and independence from the U.S., to wit:

MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE SHALL
ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE PHILIPPINES."
Allow me to briefly explain, Madam President. The Armed Forces of the Philippines is a vital component
of Philippine society depending upon its training, orientation and support. It will either be the people's
protector or a staunch supporter of a usurper or tyrant, local and foreign interest. The Armed Forces of
the Philippines' past and recent experience shows it has never been independent and self-reliant. Facts,
data and statistics will show that it has been substantially dependent upon a foreign power. In March
1968, Congressman Barbero, himself a member of the Armed Forces of the Philippines, revealed top
secret documents showing what he described as U.S. dictation over the affairs of the Armed Forces of the
Philippines. He showed that under existing arrangements, the United States unilaterally determines not
only the types and quantity of arms and equipments that our armed forces would have, but also the time
when these items are to be made available to us. It is clear, as he pointed out, that the composition,
capability and schedule of development of the Armed Forces of the Philippines is under the effective
control of the U.S. government.376 (Emphases supplied)

Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would assert
"independent" and "self-reliant" armed forces. This proposal was rejected by the committee, however.
As Commissioner De Castro asserted, the involvement of the Philippine military with the U.S. did not, by
itself, rob the Philippines of its real independence. He made reference to the context of the times: that

945
the limited resources of the Philippines and the current insurgency at that time necessitated a strong
military relationship with the U.S. He said that the U.S. would not in any way control the Philippine military
despite this relationship and the fact that the former would furnish military hardware or extend military
assistance and training to our military. Rather, he claimed that the proposal was in compliance with the
treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12 September
1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited resources, the
only thing we could do is manufacture small arms ammunition. We cannot blame the armed forces. We
have to blame the whole Republic of the Philippines for failure to provide the necessary funds to make
the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But
as of this time, fighting an insurgency case, a rebellion in our country - insurgency - and with very limited
funds and very limited number of men, it will be quite impossible for the Philippines to appropriate the
necessary funds therefor. However, if we say that the U.S. government is furnishing us the military
hardware, it is not control of our armed forces or of our government. It is in compliance with the Mutual
Defense Treaty. It is under the military assistance program that it becomes the responsibility of the United
States to furnish us the necessary hardware in connection with the military bases agreement. Please be
informed that there are three (3) treaties connected with the military bases agreement; namely: the RP-
US Military Bases Agreement, the Mutual Defense Treaty and the Military Assistance Program.

My dear Commissioner, when we enter into a treaty and we are furnished the military hardware pursuant
to that treaty, it is not in control of our armed forces nor control of our government. True indeed, we have
military officers trained in the U.S. armed forces school. This is part of our Military Assistance Program,
but it does not mean that the minds of our military officers are for the U.S. government, no. I am one of
those who took four courses in the United States schools, but I assure you, my mind is for the Filipino
people. Also, while we are sending military officers to train or to study in U.S. military schools, we are also
sending our officers to study in other military schools such as in Australia, England and in Paris. So, it does
not mean that when we send military officers to United States schools or to other military schools, we will
be under the control of that country. We also have foreign officers in our schools, we in the Command
and General Staff College in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio.377
(Emphases supplied)

This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not mean
the absence of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:

946
Economic self reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities.378 (Emphases supplied)

The heart of the constitutional restriction on foreign military facilities and bases is therefore the assertion
of independence from the U.S. and other foreign powers, as independence is exhibited by the degree of
foreign control exerted over these areas.1âwphi1 The essence of that independence is self-governance
and self-control.379 Independence itself is "[t]he state or condition of being free from dependence,
subjection, or control. "380

Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine facilities
and locations, such that the agreement effectively violates Section 25 of the 1987 Constitution.381

Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control and
defense." The term "operational control" has led petitioners to regard U.S. control over the Agreed
Locations as unqualified and, therefore, total.382 Petitioners contend that the word "their" refers to the
subject "Agreed Locations."

This argument misreads the text, which is quoted below:

United States forces are authorized to exercise all rights and authorities within Agreed Locations that are
necessary for their operational control or defense, including taking appropriate measure to protect United
States forces and United States contractors. The United States should coordinate such measures with
appropriate authorities of the Philippines.

A basic textual construction would show that the word "their," as understood above, is a possessive
pronoun for the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot be
used for a non-personal subject such as "Agreed Locations." The simple grammatical conclusion is that
"their" refers to the previous third-person plural noun, which is "United States forces." This conclusion is
in line with the definition of operational control.

a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed
Locations

947
Operational control, as cited by both petitioner and respondents, is a military term referring to

[t]he authority to perform those functions of command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating objective, and giving authoritative direction
necessary to accomplish the mission.383

At times, though, operational control can mean something slightly different. In JUSMAG Philippines v.
National Labor Relations Commission, the Memorandum of Agreement between the AFP and JUSMAG
Philippines defined the term as follows:384

The term "Operational Control" includes, but is not limited to, all personnel administrative actions, such
as: hiring recommendations; firing recommendations; position classification; discipline; nomination and
approval of incentive awards; and payroll computation.

Clearly, traditional standards define "operational control" as personnel control. Philippine law, for
instance, deems operational control as one exercised by police officers and civilian authorities over their
subordinates and is distinct from the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises operational control over the police within the
municipal government,386 just as city mayor possesses the same power over the police within the city
government.387

Thus, the legal concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in this particular case.
Though not necessarily stated in EDCA provisions, this interpretation is readily implied by the reference
to the taking of "appropriate measures to protect United States forces and United States contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much the
same way that the Philippines exercises operational control over its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the MDB-
SEB.388 This provision evinces the partnership aspect of EDCA, such that both stakeholders have a say on
how its provisions should be put into effect.

b. Operational control vis-à-vis effective command and control

948
Petitioners assert that beyond the concept of operational control over personnel, qualifying access to the
Agreed Locations by the Philippine Designated Authority with the phrase "consistent with operational
safety and security requirements in accordance with agreed procedures developed by the Parties" leads
to the conclusion that the U.S. exercises effective control over the Agreed Locations.389 They claim that
if the Philippines exercises possession of and control over a given area, its representative should not have
to be authorized by a special provision.390

For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command and
control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and control
from operational control in U.S. parlance.392 Citing the Doctrine for the Armed Forces of the United
States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of authority and
direction by a properly designated commander over assigned and attached forces in the accomplishment
of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose functions of command
over assigned forces involving the composition of subordinate forces, the assignment of tasks, the
designation of objectives, the overall control of assigned resources, and the full authoritative direction
necessary to accomplish the mission."394

Two things demonstrate the errors in petitioners' line of argument.

Firstly, the phrase "consistent with operational safety and security requirements in accordance with
agreed procedures developed by the Parties" does not add any qualification beyond that which is already
imposed by existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA and the
MDT.395 Treaties are in themselves contracts from which rights and obligations may be claimed or
waived.396 In this particular case, the Philippines has already agreed to abide by the security mechanisms
that have long been in place between the U.S. and the Philippines based on the implementation of their
treaty relations.397

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:398

Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Command at all levels is the art
of motivating and directing people and organizations into action to accomplish missions. Control is
inherent in command. To control is to manage and direct forces and functions consistent with a
commander's command authority. Control of forces and functions helps commanders and staffs compute
requirements, allocate means, and integrate efforts. Mission command is the preferred method of
exercising C2. A complete discussion of tenets, organization, and processes for effective C2 is provided in

949
Section B, "Command and Control of Joint Forces," of Chapter V "Joint Command and Control."

Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform those
functions of command over subordinate forces involving organizing and employing commands and forces,
assigning tasks, designating objectives, and giving authoritative direction over all aspects of military
operations and joint training necessary to accomplish the mission. It should be delegated to and exercised
by the commanders of subordinate organizations; normally, this authority is exercised through
subordinate JFCs, Service, and/or functional component commanders. OPCON provides authority to
organize and employ commands and forces as the commander considers necessary to accomplish
assigned missions. It does not include authoritative direction for logistics or matters of administration,
discipline, internal organization, or unit training. These elements of COCOM must be specifically delegated
by the CCDR. OPCON does include the authority to delineate functional responsibilities and operational
areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a mission.
Operational control is a narrower power and must be given, while command and control is plenary and
vested in a commander. Operational control does not include the planning, programming, budgeting, and
execution process input; the assignment of subordinate commanders; the building of relationships with
Department of Defense agencies; or the directive authority for logistics, whereas these factors are
included in the concept of command and control.400

This distinction, found in the same document cited by petitioners, destroys the very foundation of the
arguments they have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational control
within the Agreed Locations during construction activities.401 This exercise of operational control is
premised upon the approval by the MDB and the SEB of the construction activity through consultation
and mutual agreement on the requirements and standards of the construction, alteration, or
improvement.402

Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for
construction activities. The narrow and limited instance wherein the U.S. is given operational control

950
within an Agreed Location cannot be equated with foreign military control, which is so abhorred by the
Constitution.

The clear import of the provision is that in the absence of construction activities, operational control over
the Agreed Location is vested in the Philippine authorities. This meaning is implicit in the specific grant of
operational control only during construction activities. The principle of constitutional construction,
"expressio unius est exclusio alterius," means the failure to mention the thing becomes the ground for
inferring that it was deliberately excluded.403 Following this construction, since EDCA mentions the
existence of U.S. operational control over the Agreed Locations for construction activities, then it is quite
logical to conclude that it is not exercised over other activities.

Limited control does not violate the Constitution. The fear of the commissioners was total control, to the
point that the foreign military forces might dictate the terms of their acts within the Philippines.404 More
important, limited control does not mean an abdication or derogation of Philippine sovereignty and legal
jurisdiction over the Agreed Locations. It is more akin to the extension of diplomatic courtesies and rights
to diplomatic agents,405 which is a waiver of control on a limited scale and subject to the terms of the
treaty.

This point leads us to the second standard envisioned by the framers of the Constitution: that the
Philippines must retain sovereignty and jurisdiction over its territory.

ii. Second standard: Philippine sovereignty and applicable law

EDCA states in its Preamble the "understanding for the United States not to establish a permanent military
presence or base in the territory of the Philippines." Further on, it likewise states the recognition that "all
United States access to and use of facilities and areas will be at the invitation of the Philippines and with
full respect for the Philippine Constitution and Philippine laws."

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine
sovereignty and jurisdiction over the Agreed Locations.

Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by law of power
and authority to apply the law.407 Article I of the 1987 Constitution states:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced

951
therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of
its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal waters of the
Philippines. (Emphasis supplied)

From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces are
allowed to access and use.408 By withholding ownership of these areas and retaining unrestricted access
to them, the government asserts sovereignty over its territory. That sovereignty exists so long as the
Filipino people exist.409

Significantly, the Philippines retains primary responsibility for security with respect to the Agreed
Locations.410 Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has
been transferred to the U.S. Even the previously discussed necessary measures for operational control
and defense over U.S. forces must be coordinated with Philippine authorities.411

Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws
continue to be in force within the bases.412 The difference between then and now is that EDCA retains
the primary jurisdiction of the Philippines over the security of the Agreed Locations, an important
provision that gives it actual control over those locations. Previously, it was the provost marshal of the
U.S. who kept the peace and enforced Philippine law in the bases. In this instance, Philippine forces act as
peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction.413

iii. Third standard: must respect national security and territorial integrity

The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not impair
or threaten the national security and territorial integrity of the Philippines.

This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered
the prior notion of permanent military bases obsolete.

Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles
as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to
their home country. These military warships are actually used as substitutes for a land-home base not
only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as
compared to a land-based military headquarters.414

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The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for instance,
the re-establishment of the Subic military base or the Clark Air Field as U.S. military reservations. In this
context, therefore, this Court has interpreted the restrictions on foreign bases, troops, or facilities as three
independent restrictions. In accord with this interpretation, each restriction must have its own
qualification.

Petitioners quote from the website http://en.wikipedia.org to define what a military base is.415 While
the source is not authoritative, petitioners make the point that the Agreed Locations, by granting access
and use to U.S. forces and contractors, are U.S. bases under a different name.416 More important, they
claim that the Agreed Locations invite instances of attack on the Philippines from enemies of the U.S.417

We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics
and policy. At the very least, we can say that under international law, EDCA does not provide a legal basis
for a justified attack on the Philippines.

In the first place, international law disallows any attack on the Agreed Locations simply because of the
presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members shall
refrain in their international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations."418 Any unlawful attack on the Philippines breaches the treaty, and triggers Article 51 of the
same charter, which guarantees the inherent right of individual or collective self-defence.

Moreover, even if the lawfulness of the attack were not in question, international humanitarian law
standards prevent participants in an armed conflict from targeting non-participants. International
humanitarian law, which is the branch of international law applicable to armed conflict, expressly limits
allowable military conduct exhibited by forces of a participant in an armed conflict.419 Under this legal
regime, participants to an armed conflict are held to specific standards of conduct that require them to
distinguish between combatants and non-combatants,420 as embodied by the Geneva Conventions and
their Additional Protocols.421

Corollary to this point, Professor John Woodcliffe, professor of international law at the University of
Leicester, noted that there is no legal consensus for what constitutes a base, as opposed to other terms
such as "facilities" or "installation."422 In strategic literature, "base" is defined as an installation "over
which the user State has a right to exclusive control in an extraterritorial sense."423 Since this definition
would exclude most foreign military installations, a more important distinction must be made.

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For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill a
combat role. He cites an example of the use of the territory of a state for training purposes, such as to
obtain experience in local geography and climactic conditions or to carry out joint exercises.424 Another
example given is an advanced communications technology installation for purposes of information
gathering and communication.425 Unsurprisingly, he deems these non-combat uses as borderline
situations that would be excluded from the functional understanding of military bases and
installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to
be protected, unless proven otherwise.427 Moreover, the principle of distinction requires combatants in
an armed conflict to distinguish between lawful targets428 and protected targets.429 In an actual armed
conflict between the U.S. and a third state, the Agreed Locations cannot be considered U.S. territory, since
ownership of territory even in times of armed conflict does not change.430

Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate under
international humanitarian law if it is against a bona fide U.S. military base, facility, or installation that
directly contributes to the military effort of the U.S. Moreover, the third state's forces must take all
measures to ensure that they have complied with the principle of distinction (between combatants and
non-combatants).

There is, then, ample legal protection for the Philippines under international law that would ensure its
territorial integrity and national security in the event an Agreed Location is subjected to attack. As EDCA
stands, it does not create the situation so feared by petitioners - one in which the Philippines, while not
participating in an armed conflict, would be legitimately targeted by an enemy of the U.S.431

In the second place, this is a policy question about the wisdom of allowing the presence of U.S. personnel
within our territory and is therefore outside the scope of judicial review.

Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within the
military base of another sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense cooperation agreements, such as in the
following:

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432

2. 2009 U.S.-Colombia Defense Cooperation Agreement433

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3. 2009 U.S.-Poland Status of Forces Agreement434

4. 2014 U.S.-Australia Force Posture Agreement435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436

In all of these arrangements, the host state grants U.S. forces access to their military bases.437 That access
is without rental or similar costs to the U.S.438 Further, U.S. forces are allowed to undertake construction
activities in, and make alterations and improvements to, the agreed locations, facilities, or areas.439 As
in EDCA, the host states retain ownership and jurisdiction over the said bases.440

In fact, some of the host states in these agreements give specific military-related rights to the U.S. For
example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States forces
x x x are authorized access to and may use agreed facilities and areas x x x for staging and deploying of
forces and materiel, with the purpose of conducting x x x contingency operations and other missions,
including those undertaken in the framework of the North Atlantic Treaty." In some of these agreements,
host countries allow U.S. forces to construct facilities for the latter’s exclusive use.441

Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S. forces
to set up "[t]emporary structures such as those for troop billeting, classroom instruction and messing x x
x during the Exercise." Similar provisions are also in the Mutual Logistics Support Agreement of 2002 and
2007, which are essentially executive agreements that implement the VFA, the MDT, and the 1953 Military
Assistance Agreement. These executive agreements similarly tackle the "reciprocal provision of logistic
support, supplies, and services,"442 which include "[b ]illeting, x x x operations support (and construction
and use of temporary structures incident to operations support), training services, x x x storage services,
x x x during an approved activity."443 These logistic supplies, support, and services include temporary use
of "nonlethal items of military equipment which are not designated as significant military equipment on
the U.S. Munitions List, during an approved activity."444 The first Mutual Logistics Support Agreement
has lapsed, while the second one has been extended until 2017 without any formal objection before this
Court from the Senate or any of its members.

The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned
executive agreements. Instead of authorizing the building of temporary structures as previous agreements
have done, EDCA authorizes the U.S. to build permanent structures or alter or improve existing ones for,
and to be owned by, the Philippines.445 EDCA is clear that the Philippines retains ownership of altered or

955
improved facilities and newly constructed permanent or non-relocatable structures.446 Under EDCA, U.S.
forces will also be allowed to use facilities and areas for "training; x x x; support and related activities; x x
x; temporary accommodation of personnel; communications" and agreed activities.447

Concerns on national security problems that arise from foreign military equipment being present in the
Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the presence
of U.S. military equipment in the country. Article VII of the VFA already authorizes the U.S. to import into
or acquire in the Philippines "equipment, materials, supplies, and other property" that will be used "in
connection with activities" contemplated therein. The same section also recognizes that "[t]itle to such
property shall remain" with the US and that they have the discretion to "remove such property from the
Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries
have already entered into various implementing agreements in the past that are comparable to the
present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive Secretary specifically
recognizes that Philippine and U.S. forces "may share x x x in the use of their resources, equipment and
other assets." Both the 2002 and 2007 Mutual Logistics Support Agreements speak of the provision of
support and services, including the "construction and use of temporary structures incident to operations
support" and "storage services" during approved activities.449 These logistic supplies, support, and
services include the "temporary use of x x x nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an approved activity."450
Those activities include "combined exercises and training, operations and other deployments" and
"cooperative efforts, such as humanitarian assistance, disaster relief and rescue operations, and maritime
anti-pollution operations" within or outside Philippine territory.451 Under EDCA, the equipment, supplies,
and materiel that will be prepositioned at Agreed Locations include "humanitarian assistance and disaster
relief equipment, supplies, and materiel. "452 Nuclear weapons are specifically excluded from the
materiel that will be prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national security.
If anything, EDCA increases the likelihood that, in an event requiring a defensive response, the Philippines
will be prepared alongside the U.S. to defend its islands and insure its territorial integrity pursuant to a
relationship built on the MDT and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help and
defense in the Pacific area.453 We believe that any discussion of the activities to be undertaken under
EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note that a proper petition on

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that issue must be filed before we rule thereon. We also note that none of the petitions or memoranda
has attempted to discuss this issue, except only to theorize that the U.S. will not come to our aid in the
event of an attack outside of the Pacific. This is a matter of policy and is beyond the scope of this judicial
review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility
adverted to does appear to be one of those that require a public franchise by way of congressional action
under Section 11, Article XII of the Constitution. As respondents submit, however, the system referred to
in the agreement does not provide telecommunications services to the public for compensation.454 It is
clear from Article VIl(2) of EDCA that the telecommunication system is solely for the use of the U.S. and
not the public in general, and that this system will not interfere with that which local operators use.
Consequently, a public franchise is no longer necessary.

Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely
speculative. It is noteworthy that the agreement in fact specifies that the prepositioned materiel shall not
include nuclear weapons.455 Petitioners argue that only prepositioned nuclear weapons are prohibited
by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to Philippine territory.456
The general prohibition on nuclear weapons, whether prepositioned or not, is already expressed in the
1987 Constitution.457 It would be unnecessary or superfluous to include all prohibitions already in the
Constitution or in the law through a document like EDCA.

Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate from
Congress. This allegation ignores jurisprudence on the government's assumption of tax liability. EDCA
simply states that the taxes on the use of water, electricity, and public utilities are for the account of the
Philippine Government.458 This provision creates a situation in which a contracting party assumes the tax
liability of the other.459 In National Power Corporation v. Province of Quezon, we distinguished between
enforceable and unenforceable stipulations on the assumption of tax liability. Afterwards, we concluded
that an enforceable assumption of tax liability requires the party assuming the liability to have actual
interest in the property taxed.460 This rule applies to EDCA, since the Philippine Government stands to
benefit not only from the structures to be built thereon or improved, but also from the joint training with
U.S. forces, disaster preparation, and the preferential use of Philippine suppliers.461 Hence, the provision
on the assumption of tax liability does not constitute a tax exemption as petitioners have posited.

Additional issues were raised by petitioners, all relating principally to provisions already sufficiently
addressed above. This Court takes this occasion to emphasize that the agreement has been construed
herein as to absolutely disauthorize the violation of the Constitution or any applicable statute. On the
contrary, the applicability of Philippine law is explicit in EDCA.

EPILOGUE

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The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities in
Philippine history arises not so much from xenophobia, but from a genuine desire for self-determination,
nationalism, and above all a commitment to ensure the independence of the Philippine Republic from any
foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional
prerogatives in respect of foreign affairs. They cannot cripple him when he deems that additional security
measures are made necessary by the times. As it stands, the Philippines through the Department of
Foreign Affairs has filed several diplomatic protests against the actions of the People's Republic of China
in the West Philippine Sea;462 initiated arbitration against that country under the United Nations
Convention on the Law of the Sea;463 is in the process of negotiations with the Moro Islamic Liberation
Front for peace in Southern Philippines,464 which is the subject of a current case before this Court; and
faces increasing incidents of kidnappings of Filipinos and foreigners allegedly by the Abu Sayyaf or the
New People's Army.465 The Philippine military is conducting reforms that seek to ensure the security and
safety of the nation in the years to come.466 In the future, the Philippines must navigate a world in which
armed forces fight with increasing sophistication in both strategy and technology, while employing
asymmetric warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. The
Philippines is one of the countries most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical cyclone Yolanda (internationally named Haiyan), one of the
most devastating forces of nature the world has ever seen hit the Philippines on 8 November 2013 and
killed at least 6,000 people.467 This necessitated a massive rehabilitation project.468 In the aftermath,
the U.S. military was among the first to extend help and support to the Philippines.

That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their help,
their wealth, and their prayers to those affected. It also brought to the fore the value of having friends in
the international community.

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the same
time against the destructive forces of nature, the Philippines will need friends. Who they are, and what
form the friendships will take, are for the President to decide. The only restriction is what the Constitution
itself expressly prohibits. It appears that this overarching concern for balancing constitutional
requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with existing
laws and treaties that it purports to implement.

958
WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

959