Republic of the Philippines established, limited and defined, and by which these powers are

SUPREME COURT distributed among the several departments.2 The Constitution is the
Manila basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must
EN BANC defer.3 Constitutional doctrines must remain steadfast no matter what
may be the tides of time. It cannot be simply made to sway and
G.R. No. 192935 December 7, 2010 accommodate the call of situations and much more tailor itself to the
whims and caprices of government and the people who run it.4
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs. For consideration before the Court are two consolidated cases5 both
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent. of which essentially assail the validity and constitutionality of
Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."
x - - - - - - - - - - - - - - - - - - - - - - -x
The first case is G.R. No. 192935, a special civil action for prohibition
G.R. No. 193036
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a
citizen and taxpayer. Biraogo assails Executive Order No. 1 for being
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., violative of the legislative power of Congress under Section 1, Article
REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, VI of the Constitution6 as it usurps the constitutional authority of the
SR., Petitioners, legislature to create a public office and to appropriate funds therefor.7
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
The second case, G.R. No. 193036, is a special civil action for
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
certiorari and prohibition filed by petitioners Edcel C. Lagman,
FLORENCIO B. ABAD, Respondents.
Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua,
Sr. (petitioners-legislators) as incumbent members of the House of
DECISION Representatives.

MENDOZA, J.:
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.
--- Justice Jose P. Laurel1
The genesis of the foregoing cases can be traced to the events prior
to the historic May 2010 elections, when then Senator Benigno
Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, "Kung walang corrupt, walang
mahirap." The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good senator to
the presidency.
To transform his campaign slogan into reality, President Aquino found
a need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.

The role of the Constitution cannot be overlooked. It is through the

Constitution that the fundamental powers of government are
1
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects
the political, economic, and social life of a nation; in a very special
way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
2
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to reorganize
the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of
the Republic of the Philippines, by virtue of the powers vested in me
by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations
to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such
graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence
related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to
this end require any agency, official or employee of
the Executive Branch, including government-owned or
controlled corporations, to produce documents,
books, records and other papers;
c) Upon proper request or representation, obtain
information and documents from the Senate and the
House of Representatives records of investigations
conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain
information from the courts, including the
Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the
regular courts, as the case may be;
e) Invite or subpoena witnesses and take their
testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to
utilize any person as a state witness to ensure that
the ends of justice be fully served, that such person
who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for that
purpose;
g) Turn over from time to time, for expeditious
prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report
3
and recommendation, all evidence on corruption of
public officers and employees and their private sector
co-principals, accomplices or accessories, if any,
when in the course of its investigation the
Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption
under pertinent applicable laws;
h) Call upon any government investigative or
prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the
discharge of its functions and duties;
i) Engage or contract the services of resource
persons, professionals and other personnel
determined by it as necessary to carry out its
mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including
the presentation of evidence;
k) Exercise such other acts incident to or are
appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. –
x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x
x x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the
Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to include
the investigation of cases and instances of graft and corruption during
4
the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine
Truth Commission (PTC) is a mere ad hoc body formed under the
Office of the President with the primary task to investigate reports of
graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during
the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman.
Though it has been described as an "independent collegial body," it is
essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an
ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body
as it cannot adjudicate, arbitrate, resolve, settle, or render awards in
disputes between contending parties. All it can do is gather, collect
and assess evidence of graft and corruption and make
recommendations. It may have subpoena powers but it has no power
to cite people in contempt, much less order their arrest. Although it is
a fact-finding body, it cannot determine from such facts if probable
cause exists as to warrant the filing of an information in our courts of
law. Needless to state, it cannot impose criminal, civil or
administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-
finding bodies "to establish the facts and context of serious violations
of human rights or of international humanitarian law in a country’s
past."9 They are usually established by states emerging from periods
of internal unrest, civil strife or authoritarianism to serve as
mechanisms for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that
finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State.10 "Commission’s
members are usually empowered to conduct research, support
victims, and propose policy recommendations to prevent recurrence
of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge
them. They may aim to prepare the way for prosecutions and
recommend institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South Africa,
the principal function of which was to heal the wounds of past
violence and to prevent future conflict by providing a cathartic
experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed
more emphasis on reconciliation than on judicial retribution, while the
marching order of the PTC is the identification and punishment of
perpetrators. As one writer12puts it:
5
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk
about reconciliation, if they mean that they would like us to simply
forget about the wrongs that they have committed in the past, we
have this to say: There can be no reconciliation without justice. When
we allow crimes to go unpunished, we give consent to their occurring
over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to enjoin
the PTC from performing its functions. A perusal of the arguments of
the petitioners in both cases shows that they are essentially the
same. The petitioners-legislators summarized them in the following
manner:
(a) E.O. No. 1 violates the separation of powers as it
arrogates the power of the Congress to create a public office
and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to
structurally reorganize the Office of the President to achieve
economy, simplicity and efficiency does not include the power
to create an entirely new public office which was hitherto
inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent
statutes when it vested the "Truth Commission" with quasi-
judicial powers duplicating, if not superseding, those of the
Office of the Ombudsman created under the 1987
Constitution and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it
selectively targets for investigation and prosecution officials
and personnel of the previous administration as if corruption
 is their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010"
violates the consistent and general international practice of
four decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which
customary practice forms part of the generally accepted
principles of international law which the Philippines is
mandated to adhere to pursuant to the Declaration of
Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in
futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even
a statute."13
In their Consolidated Comment,14 the respondents, through the Office
of the Solicitor General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed executive order
with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to
create a public office because the President’s executive
power and power of control necessarily include the inherent
power to conduct investigations to ensure that laws are
faithfully executed and that, in any event, the Constitution,
Revised Administrative Code of 1987 (E.O. No.
292), 15 Presidential Decree (P.D.) No. 141616 (as amended
by P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence
that authorize the President to create or form such bodies.
6
2] E.O. No. 1 does not usurp the power of Congress to
appropriate funds because there is no appropriation but a
mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the
functions of the Office of the Ombudsman (Ombudsman) and
the Department of Justice (DOJ), because it is a fact-finding
body and not a quasi-judicial body and its functions do not
duplicate, supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal
protection clause because it was validly created for laudable
purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and
Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia and Presidential
Agency on Reform and Government Operations (PARGO)by
President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to
file their respective petitions and question Executive Order
No. 1;
2. Whether or not Executive Order No. 1 violates the principle
of separation of powers by usurping the powers of Congress
to create and to appropriate funds for public offices, agencies
and commissions;
3. Whether or not Executive Order No. 1 supplants the
powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection clause; and
 5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to question
the validity of the subject act or issuance; otherwise stated, he must
have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.19
Among all these limitations, only the legal standing of the petitioners
has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to
file their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown
that they have sustained or are in danger of sustaining any personal
injury attributable to the creation of the PTC. Not claiming to be the
subject of the commission’s investigations, petitioners will not sustain
injury in its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing
of the petitioners-legislators to assail Executive Order No. 1.
Evidently, their petition primarily invokes usurpation of the power of
the Congress as a body to which they belong as members. This
certainly justifies their resolve to take the cudgels for Congress as an
institution and present the complaints on the usurpation of their power
7
and rights as members of the legislature before the Court. As held in
Philippine Constitution Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power
of each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member
of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in their
office remain inviolate. Thus, they are allowed to question the validity
of any official action which, to their mind, infringes on their
prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has
no standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds
already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail
congressional action but will simply be an exercise of the President’s
power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere
in his petition is an assertion of a clear right that may justify his
clamor for the Court to exercise judicial power and to wield the axe
over presidential issuances in defense of the Constitution. The case
of David v. Arroyo24 explained the deep-seated rules on locus standi.
Thus:
Locus standi is defined as "a right of appearance in a court of justice
on a given question." In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "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." Succinctly put, the
plaintiff’s standing is based on his own right to the relief sought.
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.
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, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s
suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel
Case v. Collins: "In matter of mere public right, however…the people
are the real parties…It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect
to taxpayer’s suits, Terr v. Jordan 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."
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 State 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
8
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. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching significance
to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court
held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements 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,27 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.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29are non-
existent in this case. The Court, however, finds reason in Biraogo’s
assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There
are constitutional issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar,
they should be resolved for the guidance of all.30 Undoubtedly, the
Filipino people are more than interested to know the status of the
President’s first effort to bring about a promised change to the
country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of
the public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching
significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct body of
the Office of the President.31 Thus, in order that the President may
create a public office he must be empowered by the Constitution, a
statute or an authorization vested in him by law. According to
petitioner, such power cannot be presumed32 since there is no
provision in the Constitution or any specific law that authorizes the
President to create a truth commission.33 He adds that Section 31 of
the Administrative Code of 1987, granting the President the
continuing authority to reorganize his office, cannot serve as basis for
the creation of a truth commission considering the aforesaid provision
merely uses verbs such as "reorganize," "transfer," "consolidate,"
"merge," and "abolish."34 Insofar as it vests in the President the
plenary power to reorganize the Office of the President to the extent
of creating a public office, Section 31 is inconsistent with the principle
of separation of powers enshrined in the Constitution and must be
deemed repealed upon the effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of
the Revised Administrative Code: 1) does not permit the President to
create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of
the Office of the President Proper, transfer of functions and transfer
of agencies; and 4) only to achieve simplicity, economy and
efficiency.36Such continuing authority of the President to reorganize
his office is limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated authority.
9
The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents,
it argues that the authority of the President to create public offices
within the Office of the President Proper has long been
recognized.37 According to the OSG, the Executive, just like the other
two branches of government, possesses the inherent authority to
create fact-finding committees to assist it in the performance of its
constitutionally mandated functions and in the exercise of its
administrative functions.38 This power, as the OSG explains it, is but
an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article
VII of the Constitution.39
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure that
all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the
functions of the executive department, bureau and office, or interfere
with the discretion of his officials.40 The power of the President to
investigate is not limited to the exercise of his power of control over
his subordinates in the executive branch, but extends further in the
exercise of his other powers, such as his power to discipline
subordinates,41 his power for rule making, adjudication and licensing
purposes42 and in order to be informed on matters which he is entitled
to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it
was held that the President has the power to reorganize the offices
and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid
delegation of the legislative power to reorganize executive offices
under existing statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President may
create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of
the PTC fall within the ambit of the power to reorganize as expressed
in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional
and structural lines: (1) restructuring the internal organization of the
Office of the President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any
other Department/Agency or vice versa; or (3) transferring any
agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to
reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of
an office is nowhere mentioned, much less envisioned in said
provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term "restructure"– an "alteration
of an existing structure." Evidently, the PTC was not part of the
structure of the Office of the President prior to the enactment of
Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of the
power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), "the President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this
purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre [323
SCRA 312 (2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes place when
there is an alteration of the existing structure of government offices or
units therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of
10
Finance. It falls under the Office of the President. Hence, it is subject
to the President’s continuing authority to reorganize. [Emphasis
Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to alter
or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former with that of the latter.47 Clearly, the power of control is entirely
different from the power to create public offices. The former is
inherent in the Executive, while the latter finds basis from either a
valid delegation from Congress, or his inherent duty to faithfully
execute the laws.
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public office?
According to the OSG, the power to create a truth commission
pursuant to the above provision finds statutory basis under P.D.
1416, as amended by P.D. No. 1772.48 The said law granted the
President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities, transfer appropriations, and
to standardize salaries and materials. This decree, in relation to
Section 20, Title I, Book III of E.O. 292 has been invoked in several
cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree is
already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the
power to create offices and transfer appropriations pursuant to one of
the purposes of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national government.
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the
1987 Constitution. In fact, even the Solicitor General agrees with this
view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted
was the last whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive
powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was
issued. Now would you agree with me that P.D. 1416 should not be
considered effective anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416,
Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to
reorganize the entire National Government is deemed repealed, at
least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on
the basis of P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure that
the laws are faithfully executed. Section 17 reads:
Section 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).
11
As correctly pointed out by the respondents, the allocation of power in
the three principal branches of government is a grant of all powers
inherent in them. The President’s power to conduct investigations to
aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is
inherent in the President’s powers as the Chief Executive. That the
authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such
authority.51 As explained in the landmark case of Marcos v.
Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative,
executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is
the power to enforce the laws, for the President is head of state as
well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds
it. Furthermore, the Constitution itself provides that the execution of
the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be executive.
x x x.
Indeed, the Executive is given much leeway in ensuring that our laws
are faithfully executed. As stated above, the powers of the President
are not limited to those specific powers under the Constitution.53 One
of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department
of Health v. Camposano,54 the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to
look into the administrative charges filed against the employees of the
Department of Health for the anomalous purchase of medicines was
upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally
granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that
all executive officials and employees faithfully comply with the law.
With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that
the former used the offices and facilities of the latter in conducting the
inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President
is entitled to know so that he can be properly advised and guided in
the performance of his duties relative to the execution and
enforcement of the laws of the land. And if history is to be revisited,
this was also the objective of the investigative bodies created in the
past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the
Melo Commission and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to
declare such executive power as non-existent just because the
direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an
allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of the
12
power of Congress to appropriate funds. Further, there is no need to
specify the amount to be earmarked for the operation of the
commission because, in the words of the Solicitor General, "whatever
funds the Congress has provided for the Office of the President will
be the very source of the funds for the commission."55 Moreover,
since the amount that would be allocated to the PTC shall be subject
to existing auditing rules and regulations, there is no impropriety in
the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws
are faithfully executed is well recognized. It flows from the faithful-
execution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by
the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the
appropriate action. As previously stated, no quasi-judicial powers
have been vested in the said body as it cannot adjudicate rights of
persons who come before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine questions of fact to
which the legislative policy is to apply and to decide in accordance
with the standards laid down by law itself in enforcing and
administering the same law."58 In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by
the legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official
probe x x: to conduct an official inquiry." The purpose of investigation,
of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or
resolving a controversy involved in the facts inquired into by
application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow
up step by step by patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the taking of evidence; a
legal inquiry;" "to inquire; to make an investigation," "investigation"
being in turn described as "(a)n administrative function, the exercise
of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec.
257; x x an inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The
dictionary defines the term as "to settle finally (the rights and duties of
the parties to a court case) on the merits of issues raised: x x to pass
judgment on: settle judicially: x x act as judge." And "adjudge" means
"to decide or rule upon as a judge or with judicial or quasi-judicial
powers: x x to award or grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous with adjudge in
its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. x x. Implies a
judicial determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions
in a controversy must be accompanied by the authority of applying
the law to the factual conclusions to the end that the controversy may
be decided or resolved authoritatively, finally and definitively, subject
to appeals or modes of review as may be provided by law.60 Even
13
respondents themselves admit that the commission is bereft of any
quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the
two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall
task of the commission to conduct a fact-finding investigation."62 The
actual prosecution of suspected offenders, much less adjudication on
the merits of the charges against them,63 is certainly not a function
given to the commission. The phrase, "when in the course of its
investigation," under Section 2(g), highlights this fact and gives
credence to a contrary interpretation from that of the petitioners. The
function of determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the
Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No.
6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v.
Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared
with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the local Sanggunians
to investigate complaints against local elective officials. [Emphasis
supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of
R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any investigatory
agency of government, the investigation of such cases. [Emphases
supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically
out of the PTC’s sphere of functions. Its power to investigate is limited
to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement
of the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under
Section 3 (2), Chapter 1, Title III, Book IV in the Revised
Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission of
crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission
and the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the
DOJ have a wider degree of latitude to decide whether or not to reject
the recommendation. These offices, therefore, are not deprived of
their mandated duties but will instead be aided by the reports of the
PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of its
apparent transgression of the equal protection clause enshrined in
14
Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1
reads:
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.
The petitioners assail Executive Order No. 1 because it is violative of
this constitutional safeguard. They contend that it does not apply
equally to all members of the same class such that the intent of
singling out the "previous administration" as its sole object makes the
PTC an "adventure in partisan hostility."66 Thus, in order to be
accorded with validity, the commission must also cover reports of
graft and corruption in virtually all administrations previous to that of
former President Arroyo.67
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not
only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of
controversies and anomalies"68 were reported to have been
committed against the Filipino people. They assail the classification
formulated by the respondents as it does not fall under the
recognized exceptions because first, "there is no substantial
distinction between the group of officials targeted for investigation by
Executive Order No. 1 and other groups or persons who abused their
public office for personal gain; and second, the selective classification
is not germane to the purpose of Executive Order No. 1 to end
corruption."69 In order to attain constitutional permission, the
petitioners advocate that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo administration with the
strong arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal
protection clause for "the segregation of the transactions of public
officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions
and is germane to the evils which the Executive Order seeks to
correct."72 To distinguish the Arroyo administration from past
administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large
scale graft and corruption in the previous administration which have
eroded public confidence in public institutions. There is, therefore, an
urgent call for the determination of the truth regarding certain reports
of large scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against those
involved, if warranted, and to deter others from committing the evil,
restore the people’s faith and confidence in the Government and in
their public servants.
Second. The segregation of the preceding administration as the
object of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most likely
bear the immediate consequence of the policies of the previous
administration.
Third. The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure
that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current
administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence
and good housekeeping by a nascent administration like the
Presidential Commission on Good Government (PCGG), created by
the late President Corazon C. Aquino under Executive Order No. 1 to
pursue the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and the Saguisag
15
Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor,
former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
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.74
"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."75 It
"requires public bodies and institutions to treat similarly situated
individuals in a similar manner."76 "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."77 "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."78
The equal protection clause is aimed at all official state actions, not
just those of the legislature.79 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. 80
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 conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class.83 "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."84
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. As elucidated in Victoriano v. Elizalde Rope
Workers' Union85 and reiterated in a long line of cases,86
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
16
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. [Citations
omitted]
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption
during the previous administration"87 only. The intent to single out the
previous administration is plain, patent and manifest. Mention of it
has been made in at least three portions of the questioned executive
order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations
to the President, Congress and the Ombudsman. [Emphases
supplied]
In this regard, it must be borne in mind that the Arroyo administration
is but just a member of a class, that is, a class of past
administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are
not substantial enough to merit the restriction of the investigation to
the "previous administration" only. The reports of widespread
corruption in the Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier administrations which
were also blemished by similar widespread reports of impropriety.
They are not inherent in, and do not inure solely to, the Arroyo
administration. As Justice Isagani Cruz put it, "Superficial differences
do not make for a valid classification."88
17
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness."89The
reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or "end
corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence or
that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased
presidents and cases which have already prescribed can no longer
be the subjects of inquiry by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous administrations,
given the body’s limited time and resources. "The law does not
require the impossible" (Lex non cogit ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century’s worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC,
to be true to its mandate of searching for the truth, must not exclude
the other past administrations. The PTC must, at least, have the
authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional. In the often quoted language of Yick
Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance,
yet, if applied and administered by public authority with an evil eye
and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of
the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body,
its scope is limited. The Court, however, is of the considered view
that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount
law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public
authority administered.93 Laws that do not conform to the Constitution
should be stricken down for being unconstitutional.94While the thrust
of the PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together
with the provisions of the Constitution. To exclude the earlier
administrations in the guise of "substantial distinctions" would only
confirm the petitioners’ lament that the subject executive order is only
an "adventure in partisan hostility." In the case of US v. Cyprian,95 it
was written: "A rather limited number of such classifications have
routinely been held or assumed to be arbitrary; those include: race,
national origin, gender, political activity or membership in a political
party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude
additions to the number included within a class, but must be of such a
nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations
and circumstances which are relative to the discriminatory legislation
and which are indistinguishable from those of the members of the
class must be brought under the influence of the law and treated by it
in the same way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to
the validity of a law under the equal protection clause."98 "Legislation
is not unconstitutional merely because it is not all-embracing and
does not include all the evils within its reach."99 It has been written
that a regulation challenged under the equal protection clause is not
devoid of a rational predicate simply because it happens to be
incomplete.100 In several instances, the underinclusiveness was not
considered a valid reason to strike down a law or regulation where
the purpose can be attained in future legislations or regulations.
These cases refer to the "step by step" process.101 "With regard to
equal protection claims, a legislature does not run the risk of losing
the entire remedial scheme simply because it fails, through
18
inadvertence or otherwise, to cover every evil that might conceivably
have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional
as can be gleaned from the fact that it was underscored at least three
times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report
to be focused on unlike the investigative commissions created in the
past. "The equal protection clause is violated by purposeful and
intentional discrimination."103
To disprove petitioners’ contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only
confine itself to cases of large scale graft and corruption committed
during the previous administration.104The OSG points to Section 17 of
Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly
by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President
the discretion to expand the scope of investigations of the PTC so as
to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in
the future. Such expanded mandate of the commission will still
depend on the whim and caprice of the President. If he would decide
not to include them, the section would then be meaningless. This will
only fortify the fears of the petitioners that the Executive Order No. 1
was "crafted to tailor-fit the prosecution of officials and personalities
of the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal
protection clause." The decision, however, was devoid of any
discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of
action.
A final word
The issue that seems to take center stage at present is - whether or
not the Supreme Court, in the exercise of its constitutionally
mandated power of Judicial Review with respect to recent initiatives
of the legislature and the executive department, is exercising undue
interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental
tenets like the doctrine of separation of powers? Time and again, this
issue has been addressed by the Court, but it seems that the present
political situation calls for it to once again explain the legal basis of its
action lest it continually be accused of being a hindrance to the
nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of
the 1987 Constitution, is vested with Judicial Power that "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 of abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of
judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have
been fertile grounds of conflict between the Supreme Court, on one
hand, and the two co-equal bodies of government, on the other. Many
times the Court has been accused of asserting superiority over the
other departments.
To answer this accusation, the words of Justice Laurel would be a
good source of enlightenment, to wit: "And when the judiciary
19
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."107
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply making
sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, 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.
Otherwise, the Court will not be deterred to pronounce said act as
void and unconstitutional.
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation and
its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble
and worthy of admiration the purpose of an act, but if the means to be
employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.108 The Court
cannot just turn a blind eye and simply let it pass. It will continue to
uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the
branches of the government, it is the judiciary which is the most
interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within constitutional
bounds for "ours is still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of the MARIANO C. DEL
ROBERTO A. ABAD
equal protection clause of the Constitution. CASTILLO
Associate Justice
Associate Justice
As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
MARTIN S. VILLARAMA, JOSE PORTUGAL
JR. PEREZ
SO ORDERED. Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice MARIA LOURDES P.A. SERENO
Associate Justice
WE CONCUR:
CERTIFICATION
RENATO C. CORONA
Chief Justice 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
CONCHITA CARPIO of the Court.
ANTONIO T. CARPIO
MORALES
Associate Justice
Associate Justice RENATO C. CORONA
Chief Justice
PRESBITERO J. ANTONIO EDUARDO B.
VELASCO, JR. NACHURA
Associate Justice Associate Justice

Footnotes
TERESITA J.
LEONARDO-DE ARTURO D. BRION 1
Angara v. The Electoral Commission, 63 Phil. 139, 158
CASTRO Associate Justice (1936).
Associate Justice
2
Bernas, The 1987 Constitution of the Republic of the
DIOSDADO M. PERALTA LUCAS P. BERSAMIN Philippines; A Commentary, 1996 ed., p. xxxiv, citing Miller,
Associate Justice Associate Justice Lectures on the Constitution of the United States 64 (1893); 1
Schwartz, The Powers of Government 1 (1963).

3
Cruz, Philippine Political law, 2002 ed. p. 12.

4
Id.

20
5
Resolution dated August 24, 2010 consolidating G.R. No.
192935 with G.R. No. 193036, rollo, pp. 87-88.
6
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and
referendum.
7
Biraogo Petition, p. 5, rollo, p. 7.
8
Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12,
2002, citing F.R. Mechem, A Treatise On The Law of Public
Offices and Officers.
9
International Center for Transitional Justice,
<http://www.ictj.org/en/tj/138.html> visited November 20,
2010.
10
Freeman, The Truth Commission and Procedural Fairness,
2006 Ed., p. 12, citing Hayner, UnspeakableTruths: Facing
the Challenge of Truth Commissions.
11
International Center for Transitional Justice, supra note 9.
12
Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/v
iew/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
13
Lagman Petition, pp. 50-52, rollo, pp. 58-60.
14
Rollo, pp. 111-216.
15
Otherwise known as the Administrative Code of 1987.
Granting Continuing Authority To The President Of The
16
Philippines To Reorganize The National Government.
21
17
Otherwise known as the General Appropriations Act of
2010.
18
OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy
v. Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001,
354 SCRA 651, 660-661.
19
Senate of the Philippines v. Ermita, G.R. No. 169777, April
20, 2006, 488 SCRA 1, 35; and Francisco v. House of
Representatives, 460 Phil. 830, 842 (2003).
20
OSG Memorandum, p. 29, rollo, p. 348.
21
G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
Supra note 19, citing Pimentel Jr., v. Executive Secretary,
22
G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.
23
OSG Memorandum, p. 30, rollo, p. 349.
24
G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
25
Social Justice Society (SJS) v. Dangerous Drugs Board and
Philippine Drug Enforcement Agency, G.R. No. 157870,
November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary
of the Department of Energy, 346 Phil 321 (1997); De Guia v.
COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420,
422.
26
G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
27
84 Phil. 368, 373 (1949).
28
"(1) the character of the funds or other assets involved in
the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and, (3) the lack
of any other party with a more direct and specific interest in
the questions being raised."
29
G.R. No. 174697, July 8, 2010. 46
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also
cited in Banda, supra.
30
Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5,
1994, 232 SCRA 110, 139. 47
The Veterans Federation of the Philippines v. Reyes, G. R.
No. 155027, February 28, 2006, 483 SCRA 526, 564; DOTC
31
Biraogo Memorandum, p. 7, rollo, p. 69. v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v.
Silvosa, 97 Phil. 143 (1955).
32
Id. at 6, rollo, p. 68.
48
OSG Memorandum, p. 56, rollo, p. 375.
33
Id. at 9, rollo, p. 71.
49
G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
34
Id. at 10, rollo, p. 72.
50
TSN, September 28, 2010, pp. 205-207.
35
Id. at 10-11, rollo pp. 72-73.
51
OSG Memorandum, p. 37, rollo, p.356.
36
Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo,
pp. 270-271. 52
G.R. 88211, September 15, 1989, 177 SCRA 688.

37
OSG Memorandum, p. 32, rollo, p. 351. 53
Id. at 691.

38
Id. at 33, rollo, p. 352. 54
496 Phil. 886, 896-897 (2005).

39
OSG Consolidated Comment, p. 24, rollo, p. 144. 55
Consolidated Comment, p. 48; rollo, p. 168.

40
OSG Memorandum, pp. 38-39, rollo, pp. 357-358. 56
Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
41
Citing Department of Health v. Camposano, G.R. No. that the laws be faithfully executed.
157684, April 27, 2005, 457 SCRA 438, 450.
57
Ople v. Torres, 354 Phil. 948, 967 (1998).
42
Citing Evangelista v. Jarencio, No. L-27274, November 27,
1975, 68 SCRA 99, 104.
58
Smart Communications, Inc. et al. v. National
Telecommunications Commission, 456 Phil. 145, 156 (2003).
43
Citing Rodriguez v. Santos Diaz, No. L-19553, February 29,
1964, 10 SCRA 441, 445. 59
G.R. No. 96681, December 2, 1991, 204 SCRA 483.

44
G.R. No. 166620, April 20, 2010. 60
Id. at 492.

45
Consolidated Comment, p. 45, rollo, p. 165. TSN, September 28, 2010, pp. 39-44; and OSG
61

Memorandum, p. 67, rollo, p. 339.

22
62
OSG Consolidated Comment, p. 55, rollo, p. 175. Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d,
78

Vol. 16 (b), p. 303.

63
Id. at 56, rollo, p. 176.
79
See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am.
64
Id. Jur. 2d, Vol. 16 (b), pp. 316-317.

65
G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339. 80
See Lombard v. State of La., 373 US 267 cited in Am. Jur.
2d, Vol. 16 (b), p. 316.
66
Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
81
Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
67
Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp.
347-348. 82
Cruz, Constitutional Law, 2003 ed., p. 128.

68
Lagman Petition, p. 31, rollo, p. 39.
83
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol.
16 (b), p. 367.
69
Id. at 28-29, rollo, pp. 36-37.
84
Cruz, Constitutional Law, 2003 ed., pp. 135-136.
70
Id. at 29, rollo, p. 37.
85
No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
71
OSG Memorandum, p. 88; rollo, p. 407.
86
Basa v. Federacion Obrera de la Industria Tabaquera y
72
OSG Consolidated Comment. p. 68, rollo, p. 188. Otros Trabajadores de Filipinas (FOITAF), No. L-27113,
November 19, 1974, 61 SCRA 93, 110-111; Anuncension v.
National Labor Union, No. L-26097, November 29, 1977, 80
73
OSG Memorandum, pp. 90-93, rollo, pp. 409-412.
SCRA 350, 372-373; Villegas v. Hiu Chiong Tsai Pao Ho, No.
L-29646, November 10, 1978, 86 SCRA 270, 275; Dumlao v.
74
The Philippine Judges Association v. Hon. Pardo, G.R. No. Comelec, No. L-52245, January 22, 1980, 95 SCRA 392,
105371, November 11, 1993, 227 SCRA 703, 711. 404; Ceniza v. Comelec, No. L-52304, January 28, 1980, 95
SCRA 763, 772-773; Himagan v. People, G.R. No. 113811,
75
Id. at 712, citing Ichong v. Hernandez, 101 Phil. 1155 October 7, 1994, 237 SCRA 538; The Conference of Maritime
(1957); Sison, Jr. v. Ancheta, No. L-59431, July 25, 1984, 130 Manning Agencies, Inc. v. POEA, G.R. No. 114714, April 21,
SCRA 654; Association of Small Landowners in the 1995, 243 SCRA 666, 677; JMM Promotion and
Philippines v. Secretary of Agrarian Reform, G.R. No. 7842, Management, Inc. v. Court of Appeals, G.R. No. 120095,
July 14, 1989, 175 SCRA 343, 375. August 5, 1996, 260 SCRA 319, 331–332; and Tiu v. Court of
Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278,
Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in
76
288-289. See also Ichong v. Hernandez, No. L-7995, 101
Am. Jur, 2d, Vol. 16 (b), p. 302. Phil. 1155 (1957); Vera v. Cuevas, Nos. L-33693-94, May 31,
1979, 90 SCRA 379, 388; and Tolentino v. Secretary of
Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in
77 Finance, G.R. Nos. 115455, 115525, 115543, 115544,
Am. Jur. 2d, Vol. 16 (b), p. 303.

23
115754, 115781, 115852, 115873, and 115931, August 25, 99
Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol.
1994, 235 SCRA 630, 684. 16 (b), p. 370.

87
7th Whereas clause, Executive Order No. 1. 100
Clements v. Fashing, 457 US 957.

88
Cruz, Constitutional Law, 2003 ed., p. 128. 101
See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A
state legislature may, consistently with the Equal Protection
89
OSG, Memorandum, p. 89, rollo, p. 408. Clause, address a problem one step at a time, or even select
one phase of one field and apply a remedy there, neglecting
90
6th Whereas clause, Executive Order No. 1 the others. [Jeffeson v. Hackney, 406 US 535].

91
Lee, Handbook of Legal Maxims, 2002 Ed., p. McDonald v. Board of Election Com’rs of Chicago, 394 US
102

802 cited in Am Jur 2d, Footnote No. 9.

92
118 US
357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur.
103

&vol=118&invol=35 <accessed on December 4, 2010>. 2d, Vol. 16 (b), p. 303.

93
Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003,
104
OSG Consolidated Comment, p. 66, rollo, p.186.
405 SCRA 614, pp. 631-632; Manila Prince Hotel vs. GSIS,
335 Phil. 82, 101 (1997). 105
Lagman Memorandum, p. 30; rollo, p. 118.

94
Id. at 632. 106
G.R. No. 86926, October 15, 1991; 202 SCRA 680.

95
756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No. 107
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
HCR 90-42;
also http://in.findacase.com/research/wfrmDocViewer.aspx/xq 108
Cruz, Philippine Political Law, 2002 ed., pp. 12-13.
/fac.19910130_0000002.NIN.htm/qx <accessed December 5,
2010> 109
Id.
96
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. Republic v. Southside Homeowners Association, G.R. No.
110

16 (b), p. 367. 156951, September 22, 2006.

Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d,

97

Vol. 16 (b), pp. 367-368 . The Lawphil Project - Arellano Law Foundation
98
Nixon v. Administrator of General Services, 433 US 425
cited in Am. Jur. 2d, Vol. 16 (b), p. 371.

SEPARATE OPINION
24
CORONA, C.J.:
Of Truth and Truth Commissions
The fundamental base upon which a truth commission is created is
the right to the truth.1 While the right to the truth is yet to be
established as a right under customary law2 or as a general principle
of international law,3 it has nevertheless emerged as a "legal concept
at the national, regional and international levels, and relates to the
obligation of the state to provide information to victims or to their
families or even society as a whole about the circumstances
surrounding serious violations of human rights."4
A truth commission has been generally defined5 as a "body set up to
investigate a past history of violations of human rights in a particular
country ...,"6 and includes four elements:
... First, a truth commission focuses on the past. Second, a truth
commission is not focused on a specific event, but attempts to paint
the overall picture of certain human rights abuses, or violations of
international humanitarian law, over a period of time. Third, a truth
commission usually exists temporarily and for a pre-defined period of
time, ceasing to exist with the submission of a report of its findings.
Finally, a truth commission is always vested with some sort of
authority, by way of its sponsor, that allows it greater access to
information, greater security or protection to dig into sensitive issues,
and a greater impact with its report.7
As reported by Amnesty International,8 there are at least 33 truth
commissions established in 28 countries from 1974 to 2007 and this
includes the Philippines, which created the Presidential Committee on
Human Rights (PCHR) in 1986 under the post-Marcos administration
of Pres. Corazon C. Aquino.
The Philippine Experience
Notably, Pres. Corazon C. Aquino created not one but two truth
commissions.9 Aside from the PCHR, which was created to address
human rights violations, the Presidential Commission on Good
Government or PCGG was also established. The PCGG was tasked
25
with assisting the President in the "recovery of all in-gotten wealth
accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the takeover
or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through
nominees, by taking undue advantage of their public office and/or
using their powers, authority, influence, connections or relationship,"
among others.10 Unlike the present embattled and controversial Truth
Commission, however, the PCGG was created by Pres. Corazon C.
Aquino pursuant to her legislative powers under Executive Order No.
1,11 which in turn, was sanctioned by Proclamation No. 3.12
And unlike the PCGG, the present Truth Commission suffers from
both legal and constitutional infirmities and must be struck down as
unconstitutional.
Power To Create Public Offices: Inherently Legislative
The separation of powers is a fundamental principle in our system of
government.13 This principle is one of the cornerstones of our
constitutional democracy and it cannot be eroded without
endangering our government.14 The 1987 Constitution divides
governmental power into three co-equal branches: the executive, the
legislative and the judicial. It delineates the powers of the three
branches: the legislature is generally limited to the enactment of laws,
the executive department to the enforcement of laws and the judiciary
to their interpretation and application to cases and
controversies.15 Each branch is independent and supreme within its
own sphere and the encroachment by one branch on another is to be
avoided at all costs.
The power under scrutiny in this case is the creation of a public office.
It is settled that, except for the offices created by the Constitution, the
creation of a public office is primarily a legislative function. The
legislature decides what offices are suitable, necessary or convenient
for the administration of government.16
The question is whether Congress, by law, has delegated to the Chief
Executive this power to create a public office.
In creating the Truth Commission, Executive Order No. 1 (E.O. No. 1)
points to Section 31, Chapter 10, Book III of E.O. No. 292 or the
Administrative Code of 1987 as its legal basis:
Section 31. Continuing Authority of the President to Reorganize his
Office. — The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating,
or merging units thereof or transferring functions from one unit
to another;
(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments or
agencies. (Emphasis supplied)
This provision pertains to the President’s continuing delegated power
to reorganize the Office of the President. The well-settled principle is
that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally
granted power of control over executive offices and by virtue of his
delegated legislative power to reorganize them under existing
statutes.17 Needless to state, such power must always be in
accordance with the Constitution, relevant laws and prevailing
jurisprudence.18
In creating the Truth Commission, did the President merely exercise
his continuing authority to reorganize the executive department? No.
26
Considering that the President was exercising a delegated power, his
actions should have conformed to the standards set by the law, that
is, that the reorganization be in the interest of "simplicity, economy
and efficiency." Were such objectives met? They were not. The Truth
Commission clearly duplicates and supplants the functions and
powers of the Office of the Ombudsman and/or the Department of
Justice, as will be discussed in detail later. How can the creation of a
new commission with the same duplicative functions as those of
already existing offices result in economy or a more efficient
bureaucracy?19 Such a creation becomes even more questionable
considering that the 1987 Constitution itself mandates the
Ombudsman to investigate graft and corruption cases.20
The Truth Commission in the Light of The Equal Protection
Clause
Equal protection is a fundamental right guaranteed by the
Constitution. Section 1, Article III of the 1987 Constitution reads:
... nor shall any person be denied the equal protection of the laws.
It is a right afforded every man. The right to equal protection does not
require a universal application of the laws to all persons or things
without distinction.21 It requires simply that all persons or things
similarly situated should be treated alike, both as to rights conferred
and responsibilities imposed.22
In certain cases, however, as when things or persons are different in
fact or circumstance, they may be treated in law differently.23 In
Victoriano vs. Elizalde Rope Workers Union,24 the Court declared:
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.
Thus, for a classification to be valid it must pass the test of
reasonableness,25 which requires that:
(1) it be based on substantial distinctions;
(2) it must be germane to the purpose of the law;
(3) it must not be limited to present conditions; and
(4) it must apply equally to all members of the same class.
All four requisites must be complied with for the classification to be
valid and constitutional.
The constitutionality of E. O. No. 1 is being attacked on the ground
that it violates the equal protection clause.
Petitioners argue that E.O. No. 1 violates the equal protection clause
as it deliberately vests the Truth Commission with jurisdiction and
authority to solely target officials and employees of the Arroyo
Administration.26 Moreover, they claim that there is no substantial
distinction of graft reportedly committed under the Arroyo
administration and graft committed under previous administrations to
warrant the creation of a Truth Commission which will investigate for
prosecution officials and employees of the past administration.27
Respondents, on the other hand, argue that the creation of the Truth
Commission does not violate the equal protection clause. According
to them, while E.O. No. 1 names the previous administration as the
initial subject of the investigation, it does not confine itself to cases of
graft and corruption committed solely during the past administration.
Section 17 of E.O. No. 1 clearly speaks of the President’s power to
expand its coverage to previous administrations. Moreover,
27
respondents argue that the segregation of the transactions of public
officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions
and is germane to the evils which the executive order seeks to
correct.28
On its face, E.O. No. 1 clearly singles out the previous administration
as the Truth Commission’s sole subject of investigation.
Section 1. Creation of a Commission – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION", which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical
sensibilities of the people committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any during the previous administration; and
thereafter recommend the appropriate action to be taken to ensure
that the full measure of justice shall be served without fear or favor.
Section 2. Powers and Functions. – The Commission, which shall
have the powers of an investigative body under Section 37, Chapter
9, Book I of the Administrative Code of 1987, is primarily tasked to
conduct a thorough fact-finding investigation of reported cases of
graft and corruption referred to in Section 1, involving third level
public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any during the previous
administration and thereafter submit its findings and
recommendations to the President, Congress and the Ombudsman. x
x x" (Emphasis supplied)
Notwithstanding Section 17, which provides:
If and when in the judgment of the President there is a need to
expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and
corruption during the prior administration, such mandate may be so
extended accordingly by way of supplemental Executive Order."
(Emphasis supplied),
such expanded mandate of the Truth Commission will still depend on
the whim and caprice of the President. If the President decides not to
expand the coverage of the investigation, then the Truth
Commission’s sole directive is the investigation of officials and
employees of the Arroyo administration.
Given the indubitably clear mandate of E.O. No. 1, does the
identification of the Arroyo administration as the subject of the Truth
Commission’s investigation pass the jurisprudential test of
reasonableness? Stated differently, does the mandate of E.O. No. 1
violate the equal protection clause of the Constitution? Yes.
I rule in favor of petitioners.
(1) No Substantial Distinction –
There is no substantial distinction between the corruption which
occurred during the past administration and the corruption of the
administrations prior to it. Allegations of graft and corruption in the
government are unfortunately prevalent regardless of who the
President happens to be. Respondents’ claim of widespread systemic
corruption is not unique only to the past administration.
(2) Not Germane to the Purpose of the Law –
The purpose of E.O. No. 1 (to put an end to corruption in the
government) is stated clearly in the preamble of the aforesaid order:
WHEREAS, the President’s battle-cry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds; xxx
In the light of the unmistakable purpose of E.O. No. 1, the
classification of the past regime as separate from the past
administrations is not germane to the purpose of the law. Corruption
did not occur only in the past administration. To stamp out corruption,
we must go beyond the façade of each administration and investigate
all public officials and employees alleged to have committed graft in
any previous administration.
28
(3) E.O. No. 1 does Not Apply to Future Conditions –
As correctly pointed out by petitioners, the classification does not
even refer to present conditions, much more to future conditions vis-
avis the commission of graft and corruption. It is limited to a particular
past administration and not to all past administrations.29
We go back to the text of the executive order in question.
xxx
Whereas, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases if
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for
all;
xxx
Section 1. Creating of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION", which shall primarily seek and find the truth on, and
toward this end investigate reports of graft and corruption, x x x if any,
during the previous administration; xxx
Section 2. Power and Functions. Powers and Functions. – The
Commission, which shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption x x x, if any,
during the previous administration and thereafter submit its findings
and recommendations to the President, Congress and the
Ombudsman. x x x
The above-quoted provisions show that the sole subject of the
investigation will be public officers and employees of the previous
administration only, that is, until such time if and when the President
decides to expand the Truth Commission’s mandate to include other
administrations (if he does so at all).
(4) E.O. No. 1 Does Not Apply to the Same Class –
Lastly, E.O. No. 1 does not apply to all of those belonging to the
same class for it only applies to the public officers and employees of
the past administration. It excludes from its purview the graft and the
grafters of administrations prior to the last one. Graft is not exclusive
to the previous presidency alone, hence there is no justification to
limit the scope of the mandate only to the previous administration.
Fact-Finding or Investigation?
The nature of the powers and functions allocated by the President to
the Truth Commission by virtue of E.O. No. 1 is investigatory,30 with
the purposes of determining probable cause of the commission of
"graft and corruption under pertinent applicable laws" and referring
such finding and evidence to the proper authorities for prosecution.31
The respondents pass off these powers and functions as merely fact-
finding, short of investigatory. I do not think so. Sugar-coating the
description of the Truth Commission’s processes and functions so as
to make it "sound harmless" falls short of constitutional requirements.
It has in its hands the vast arsenal of the government to intimidate,
harass and humiliate its perceived political enemies outside the lawful
prosecutorial avenues provided by law in the Ombudsman or the
Department of Justice.
The scope of the investigatory powers and functions assigned by the
President to the Truth Commission encompasses all "public officers
and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration."32
There is no doubt in my mind that what the President granted the
Truth Commission is the authority to conduct preliminary
investigation of complaints of graft and corruption against his
immediate predecessor and her associates.
The respondents see nothing wrong with that. They believe that,
pursuant to his power of control and general supervision under Article
VII of the Constitution,33 the President can create an ad-hoc
committee like the Truth Commission to investigate graft and
29
corruption cases. And the President can endow it with authority
parallel to that of the Ombudsman to conduct preliminary
investigations. Citing Ombudsman v. Galicia34 the power of the
Ombudsman to conduct preliminary investigations is not exclusive but
shared with other similarly authorized government agencies.
I take a different view. The operative word is "authorized".
Indeed, the power of control and supervision of the President
includes the power to discipline which in turn implies the power to
investigate.35 No Congress or Court can derogate from that
power36 but the Constitution itself may set certain limits.37 And the
Constitution has in fact carved out the preliminary investigatory
aspect of the control power and allocated the same to the following:
(a) to Congress over presidential appointees who are
impeachable officers (Article XI, Sections 2 and 3);
(b) to the Supreme Court over members of the courts and the
personnel thereof (Article VIII, Section 6); and
(c) to the Ombudsman over any other public official,
employee, office or agency (Article XI, Section 13 (1)).
However, even as the Constitution has granted to the Ombudsman
the power to investigate other public officials and employees, such
power is not absolute and exclusive. Congress has the power to
further define the powers of the Ombudsman and, impliedly, to
authorize other offices to conduct such investigation over their
respective officials and personnel.38
The Constitution has vested in Congress alone the power to
grant to any office concurrent jurisdiction with the Ombudsman
to conduct preliminary investigation of cases of graft and
corruption.
In a myriad of cases, this Court has recognized the concurrent
jurisdiction of other bodies vis-à-vis the Ombudsman to conduct
preliminary investigation of complaints of graft and corruption
as authorized by law, meaning, for any other person or agency to be
able to conduct such investigations, there must be a law authorizing
him or it to do so.
In Ombudsman v. Galicia (cited in the ponencia) as well
as Ombudsman v. Estandarte,39 the Court recognized the concurrent
jurisdiction of the Division School Superintendent vis-à-vis the
Ombudsman to conduct preliminary investigation of complaints of
graft and corruption committed by public school teachers. Such
concurrent jurisdiction of the Division School Superintendent was
granted by law, specifically RA 4670 or the Magna Carta for Public
School Teachers.40
Likewise, in Ombudsman v. Medrano41 the Court held that by virtue of
RA 4670 the Department of Education Investigating Committee has
concurrent jurisdiction with the Ombudsman to conduct a preliminary
investigation of complaints against public school teachers.
Even the Sangguniang Panlungsod has concurrent jurisdiction with
the Ombudsman to look into complaints against the punong
barangay.42 Such concurrent authority is found in RA 7160 or the
Local Government Code.
The Department of Justice is another agency with jurisdiction
concurrent with the Ombudsman to conduct preliminary investigation
of public officials and employees.43 Its concurrent jurisdiction is based
on the 1987 Administrative Code.
Certainly, there is a law, the Administrative Code, which authorized
the Office of the President to exercise jurisdiction concurrent with the
Ombudsman to conduct preliminary investigation of graft and
corruption cases. However, the scope and focus of its preliminary
investigation are restricted. Under the principle that the power to
appoint includes the power to remove, each President has had his or
her own version of a presidential committee to investigate graft and
corruption, the last being President Gloria Macapagal Arroyo’s
Presidential Anti-Graft Commission (PAGC) under E.O. No. 268. The
PAGC exercised concurrent authority with the Ombudsman to
investigate complaints of graft and corruption against presidential
appointees who are not impeachable officers and non-presidential
appointees in conspiracy with the latter. It is in this light that DOH v.
30
Camposano, et al.44 as cited in the ponencia should be understood.
At that time, the PCAGC (now defunct) had no investigatory power
over non-presidential appointees; hence the President created an ad-
hoc committee to investigate both the principal respondent who was a
presidential appointee and her co-conspirators who were non-
presidential appointees. The PAGC (now also defunct), however, was
authorized to investigate both presidential appointees and non-
presidential appointees who were in conspiracy with each other.
However, although pursuant to his power of control the President
may supplant and directly exercise the investigatory functions of
departments and agencies within the executive department,45 his
power of control under the Constitution and the Administrative Code
is confined only to the executive department.46 Without any law
authorizing him, the President cannot legally create a committee to
extend his investigatory reach across the boundaries of the executive
department to "public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration" without setting apart those who are still in
the executive department from those who are not. Only the
Ombudsman has the investigatory jurisdiction over them under Article
XI, Section 13. There is no law granting to the President the authority
to create a committee with concurrent investigatory jurisdiction of this
nature.
The President acted in violation of the Constitution and without
authority of law when he created a Truth Commission under E.O. No.
1 to exercise concurrent jurisdiction with the Ombudsman to conduct
the preliminary investigation of complaints of graft and corruption
against public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration.
Investigation or Quasi-Adjudication?
Respondents argue that the Truth Commission is merely an
investigative and fact-finding body tasked to gather facts, draw
conclusions therefrom and recommend the appropriate actions or
measures to be taken. Petitioners, however, argue that the Truth
Commission is vested with quasi-judicial powers. Offices with such
awesome powers cannot be legally created by the President through
mere executive orders.
Petitioners are correct.
The definition of investigation was extensively discussed in Cariño v.
Commission on Human Rights:47
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: . . . to subject to an official
probe . . .: to conduct an official inquiry." The purpose of investigation,
of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or
resolving a controversy involved in the facts inquired into by
application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow
up step by step by patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the taking of evidence; a
legal inquiry;" "to inquire; to make an investigation," "investigation"
being in turn described as "(a)n administrative function, the exercise
of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec.
257; . . . an inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."48 (Italics in
the original)
The exercise of quasi-judicial power goes beyond mere investigation
and fact-finding. Quasi-judicial power has been defined as
… the power of the administrative agency to adjudicate the rights of
persons before it. It is the power to hear and determine questions of
fact to which the legislative policy is to apply and to decide in
accordance with the standards laid down by the law itself in enforcing
and administering the same law. The administrative body exercises
its quasi-judicial power when it performs in a judicial manner an act
which is essentially of an executive or administrative nature, where
the power to act in such manner is incidental to or reasonably
31
necessary for the performance of the executive or administrative duty
entrusted to it. In carrying out their quasi-judicial functions the
administrative officers or bodies are required to investigate facts or
ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and
exercise of discretion in a judicial nature.49(Emphasis supplied)
Despite respondents’ denial that the Truth Commission is infused
with quasi-judicial powers, it is patent from the provisions of E.O. No.
1 itself that such powers are indeed vested in the Truth Commission,
particularly in Section 2, paragraphs (b) and (g):
b) Collect, receive, review, and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate, …
xxx
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutorial authorities, by means of a special or interim
report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to
believe they are liable for graft and corruption under pertinent
applicable laws;
xxx
The powers to "evaluate evidence" and "find reasonable ground to
believe that someone is liable for graft and corruption" are not merely
fact-finding or investigatory. These are quasi-judicial in nature
because they actually go into the weighing of evidence, drawing up of
legal conclusions from them as basis for their official action and the
exercise of discretion of a judicial or quasi-judicial nature.
The evaluation of the sufficiency of the evidence is a quasi-
judicial/judicial function. It involves an assessment of the evidence
which is an exercise of judicial discretion. We have defined discretion
as the ability to make decisions which represent a responsible choice
and for which an understanding of what is lawful, right or wise may be
presupposed.50
It is the "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."51
Likewise, the power to establish if there is reasonable ground to
believe that certain persons are liable for graft and corruption under
pertinent applicable laws is quasi-judicial in nature because it is akin
to the discretion exercised by a prosecutor in the determination of
probable cause during a preliminary investigation. It involves a
judicial (or quasi-judicial) appraisal of the facts for the purpose of
determining if a violation has in fact been committed.
Although such a preliminary investigation is not a trial and is not
intended to usurp the function of the trial court, it is not a casual affair.
The officer conducting the same investigates or inquires into the facts
concerning the commission of the crime with the end in view of
determining whether or not an information may be prepared against
the accused. Indeed, a preliminary investigation is in effect a realistic
judicial appraisal of the merits of the case. Sufficient proof of the guilt
of the accused must be adduced so that when the case is tried, the
trial court may not be bound as a matter of law to order an acquittal.
A preliminary investigation has then been called a judicial inquiry. It is
a judicial proceeding. An act becomes judicial when there is
opportunity to be heard and for, the production and weighing of
evidence, and a decision is rendered thereon.
The authority of a prosecutor or investigating officer duly empowered
to preside or to conduct a preliminary investigation is no less than
that of a municipal judge or even a regional trial court judge. While
the investigating officer, strictly speaking is not a "judge," by the
nature of his functions he is and must be considered to be a quasi
judicial officer.52
Hence, the Truth Commission is vested with quasi-judicial discretion
in the discharge of its functions.
32
As a mere creation of the executive and without a law granting it the
power to investigate person and agencies outside the executive
department, the Truth Commission can only perform administrative
functions, not quasi-judicial functions. "Administrative agencies are
not considered courts; they are neither part of the judicial system nor
are they deemed judicial tribunals."53
Executive Order No. 1 and the Philippine Truth Commission of 2010,
being contrary to the Constitution, should be nullified.
I therefore vote that the petitions be GRANTED.
RENATO C. CORONA
Chief Justice
Footnotes
1
Promotion and Protection of Human Rights (Study on the
Right to the Truth): Report of the Office of the United Nations
High Commissioner for Human Rights, United Nations
Economic and Social Council (E/CN.4/2006/91), 8 February
2006.
2
See Yasmin Naqvi, The Right to the Truth in International
Law: Fact or Fiction?, International Review of the Red Cross
(2006), 88:862:254-268.
3
Ibid., 268.
4
Ibid., 245.
5
But see Eric Brahm, What is a Truth Commission and Why
Does it Matter?, Peace and Conflict Review (Spring 2009),
3:2:1-14, which proposes that "Mark Freeman’s (2006)
typology of human rights investigations as the definition
offering the most analytical clarity and the strongest potential
to move the field forward." Freeman [Truth Commissions and
Procedural Fairness (2006), New York: Cambridge University Secretary of Justice v. Lantion, G.R. No. 139465, 17
14

Press; E.H.R.L.R., 2008, 2, 294-297] defines a truth October 2000.

commission as an "ad hoc, autonomous, and victim-centered
commission of inquiry set up in and authorized by a state for Anak Mindanao Party-List Group v. The Executive
15

the primary purposes of (1) investigating and reporting on the Secretary, G.R. No. 166052, 29 August 2007.
principal causes and consequences of broad and relatively
recent patterns of severe violence or repression that occurred 16
Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152
in the state during determinate periods of abusive rule or (1995) citing AM JUR 2d on Public Officers and Employees.
conflict, and (2) making recommendations for their redress
and future prevention." 17
Banda v. Ermita, G.R. No. 166620, April 20, 2010.
6
Priscilla B. Hayner, Fifteen Truth Commissions – 1974 to 18
Ibid.
1994: A Comparative Study, Human Rights Quarterly (Nov.
1994), 16:4:600. 19
Buklod ng Kawaniang EIIB v. Sec. Zamora, 413 Phil. 281,
295.
7
Ibid., 604.
20
Office of the Ombudsman v. Samaniego, G.R. No. 175573,
8
http://www.amnesty.org/en/library/asset/POL30/009/2007/en
11 September 2008.
/7988f852-d38a-11dd-a329-2f46302a8cc6/
pol300092007en.html, viewed on 9 November 2010.
Chamber of Real Estate and Builders’ Associations, Inc. v.
21

Executive Secretary Alberto Romulo (G.R. No. 160756, 2010)

9
Ruben Carranza, Plunder and Pain: Should Transitional
Justice Engage with Corruption and Economic Crimes?, The
International Journal of Transitional Justice, Vol. 2, 2008, 322.
22
Quinto v. Comelec (G.R. No. 189698, 2009)

10
Bataan Shipyard & Engineering Co., Inc. v. Presidential
23
Abakada Guro v. Hon. Cesar V. Purisima (G.R. No.
Commission on Good Government, G.R. No. 75885, May 27, 166715, 2008)
1987, 150 SCRA 181, 202.
24
59 SCRA 54, 1974.
11
Promulgated on February 28, 1986, creating the
Presidential Commission on Good Government.
25
League of Cities of the Philippines v. COMELEC (G.R. No.
176951; G.R. No. 177499; 2008; G.R. No. 178056, 2008)
12
Promulgated on March 25, 1986, promulgating the
Provisional Constitution (also known as the Freedom 26
Par. 69, Lagman, et al’s Petition
Constitution). Article II, Section 1 thereof stated that the
President shall continue to exercise legislative power until a 27
Par. 67, Lagman, et al’s Petition
legislature is elected and convened under a new constitution
x x x. 28
OSG Memorandum, pp. 88-90.

13
Angara v. Electoral Commission, 68 Phil. 139, 156 (1936). 29
Par. 73, Lagman, et al’s Petition

33
30
Section 2. xxx b) Collect, receive, review and evaluate
evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end
require any agency, official or employee of the Executive
Branch, including government-owned or controlled
corporations, to produce documents, books, records and
other papers xxx.
31
Section 2. xxx g) Turn over from time to time, for
expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers
and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable
ground to believe that they are liable for graft and corruption
under pertinent applicable laws xxx.
32
Id.
33
Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
34
568 SCRA 327 (2008)
35
Joson v. Executive Secretary, et al., G.R. No. 131255, May
20, 1998; Villaluz v. Zaldivar, et al. (En Banc), G.R. No. L-
22754, December 31, 1965.
36
Rufino v. Endriga, G.R. No. 139554, July 21, 2006.
37
Ang-Angco v. Hon. Natalio Castillo, et al., G.R. No. L-
17169, November 30, 1963.
38
Article XI states:
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties:
34
xxx
(8) x x x exercise such other powers or perform such
functions or duties as may be provided by law.
39
G.R. No. 168670, April 13, 2007, 521 SCRA 155.
40
See also Emin v. De Leon (G.R. No. 139794, February 27,
2002, 378 SCRA 143) on the concurrent authority of the Civil
Service Commission and the DEPED Investigating Committee
under RA 4670. See further Puse v. Santos-Puse (G.R. No.
183678, March 15, 2010) where the Court held that the
concurrent jurisdiction of the DEPED and CSC to cause
preliminary investigation is also shared by the Board of
Professional Teachers under RA 7836 or Philippine Teachers
Professionalization Act of 1994.
41
G.R. No. 177580, October 17, 2008.
42
See Ombudsman v. Rolson Rodriguez, G.R. No. 172700,
July 23, 2010 citing Laxina, Sr. v.Ombudsman, G.R. No.
153155, 30 September 2005, 471 SCRA 542.
43
Sevilla Decin v. SPO1 Melzasar Tayco, et al., G.R. No.
149991, February 14, 2007; Honasan II v. The Panel of
Investigating Prosecutors of the Department of Justice, G.R.
No. 159747,
April 13, 2004.
44
G.R. No. 157684. April 27, 2005.
45
See Review Center Association of the Philippines v.
Executive Secretary Eduardo Ermita, et al., G.R. No. 180046 ,
April 2, 2009; Bermudez v. Executive Secretary, G.R. No.
131429, August 4, 1999.
46
KMU v. Director General, et al., G.R. No. 167798, April 19,
2006.
47
G.R. No. 96681, 2 December 1991, 204 SCRA 483.
 48
Id., pp. 495-496. I concur, through this Separate Opinion, with the conclusion that the
Executive Order No. 1 (EO 1 or EO) creating the Truth Commission is
Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30
49 fatally defective and thus should be struck down.
November 2006, 509 SCRA 332, 369-370.
I base my conclusion:
50
Manotoc v. Court of Appeals, G.R. No. 130974, 16 August
2006. (1) On due process grounds;

51
Philippine Long Distance Telephone Co. Inc. v. (2) On the unconstitutional impact of the EO on the
Manggagawa ng Komunikasyon sa Pilipinas, G.R. No. established legal framework of the criminal justice system;
162783, 14 July 2005.
(3) On the violation of the rule on separation of powers;
52
Cojuangco, Jr. v. Presidential Commission on Good
Government, G.R. Nos. 92319-20, 2 October 2, 1990. This is (4) On the violations of the personal rights of the investigated
an En Banc case that had been reiterated in two other En persons and their constitutional right to a fair trial;1 and
Banc cases, namely, Olivas v. Office of the Ombudsman
(G.R. No. 102420, 20 December 1994) and Uy v. Office of the (5) On the violation of the equal protection clause.
Ombudsman (G.R. Nos. 156399-400, 27 June 2008, 556
SCRA 73). Thus it cannot be said to have been overturned by
Two inter-related features of the EO primarily contribute to the
Balangauan v. Court f Appeals, Special Nineteenth Division,
resulting violations. The first is the use of the title Truth Commission,
Cebu City (G.R. No. 174350, 13 August 2008, 562 SCRA
which, as used in the EO, is fraught with hidden and prejudicial
184) a decision of the Court through the Third Division
implications beyond the seemingly simple truth that purportedly
wherein the Court declared: "It must be remembered that a
characterizes the Commission. The second relates to the truth-telling
preliminary investigation is not a quasi-judicial proceeding….
function of the Truth Commission under the terms of the EO.
(p. 203)"
Together, these features radiate outwards with prejudicial effects,
resulting in the above violations.
Meralco v. Energy Regulatory Board, G.R. No. 145399, 17
53

March 2006.
The full disclosure of the truth about irregular and criminal
government activities, particularly about graft and corruption, is a very
worthy ideal that those in government must fully support; the ideal
The Lawphil Project - Arellano Law Foundation cannot be disputed, sidetracked or much less denied. It is a matter
that the Constitution itself is deeply concerned about as shown by
Article XI on Accountability of Public Officers.

This concern, however, co-exists with many others and is not the be-
SEPARATE OPINION all and end-all of the Charter. The means and manner of addressing
this constitutional concern, for example, rate very highly in the
BRION, J.: hierarchy of constitutional values, particularly their effect on the
structure and operations of government and the rights of third
parties.

35
The working of government is based on a well-laid and purposeful
constitutional plan, essentially based on the doctrine of separation of
powers, that can only be altered by the ultimate sovereign – the
people. Short of this sovereign action, not one of the departments of
government – neither the Executive, nor the Legislature, and nor the
Judiciary – can modify this constitutional plan, whether directly or
indirectly.
Concern for the individual is another overriding constitutional value.
Significantly, the Constitution does not distinguish between the guilty
and the innocent in its coverage and grant of rights and guarantees.
In fact, it has very specific guarantees for all accused based on its
general concern for every Filipino’s life, liberty, security and property.
The Constituion, too, ensures that persons of the same class,
whether natural or juridical, are treated equally, and that the
government does not discriminate in its actions.
All these, this Court must zealously guard. We in the Court cannot
ever allow a disturbance of the equilibrium of the constitutional
structure in favour of one or the other branch, especially in favour of
the Judiciary. Much less can we pre-judge any potential accused,
even in the name of truth-telling, retribution, national healing or social
justice. The justice that the Constitution envisions is largely
expressed and embodied in the Constitution itself and this concept of
justice, more than anything else, the Judiciary must serve and satisfy.
In doing this, the Judiciary must stand as a neutral and apolitical
judge and cannot be an advocate other than for the primacy of the
Constitution.
These, in brief, reflect the underlying reasons for the cited grounds for
the invalidity of E.O. 1.
I. THE EO AND THE "TRUTH" COMMISSION.
A. THE TERMS OF THE EO AND THE RULES;
NATURE OF THE "TRUTH COMMISSION"
The Philippine Truth Commission (Truth Commission or Commission)
is a body "created" by the President of the Philippines by way of an
Executive Order (EO 1 or EO) entitled "Executive Order No. 1,
36
Creating the Philippine Truth Commission of 2010." The Truth
Commission’s express and avowed purpose is – 2
"to seek and find the truth on, and toward this end, investigate reports
of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people, committed by
public officials and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration, and thereafter recommend the appropriate action to
be taken thereon to ensure that the full measure of justice shall be
served without fear or favor."
Under these terms and by the Solicitor General’s admissions and
representations, the Truth Commission has three basic functions,
namely, fact-finding,3 policy recommendation,4 and truth-telling,5 all
with respect to reported massive graft and corruption committed by
officials and employees of the previous administration.
The EO defines the Truth Commission as an "independent collegial
body" with a Chairman and four members;6 and provides for the
staff,7 facilities8 and budgetary support9 it can rely on, all of which are
sourced from or coursed through the Office of the President. It
specifically empowers the Truth Commission to "collect, receive,
review and evaluate evidence."10 It defines how the Commission will
operate and how its proceedings will be conducted.11Notably, its
hearings shall be open to the public, except only when they are held
in executive sessions for reasons of national security, public safety or
when demanded by witnesses’ personal security concerns.12 It is
tasked to submit its findings and recommendations on graft and
corruption to the President, Congress and the Ombudsman,13 and
submit special interim reports and a comprehensive final report which
shall be published.14 Witnesses or resource persons are given the
right to counsel,15 as well as security protection to be provided by
government police agencies.16
The Rules of Procedure of the Philippine Truth Commission of 2010
(Rules), promulgated pursuant to Section 2(j) of EO 1, further flesh
out the operations of the Commission.17 Section 4 assures that "due
process shall at all times be observed in the application of the Rules."
It provides for formal complaints that may be filed before it,18 and that
after evaluation, the parties who appear responsible under the
complaints shall be provided copies of the complaints and supporting
documents, and be required to comment on or file counter-affidavits
within ten (10) days.19 The Rules declare that the Commission is not
bound by the technical rules of evidence,20 reiterate the protection
afforded to witnesses provided under the EO,21 and confirm that
hearings shall be open to the public.22
B. THE TITLE "TRUTH COMMISSION"
AND DUE PROCESS
Both the parties’ memoranda dwelt on the origins and nature of the
term "Truth Commission," with both using their reading of the term’s
history and usages to support their respective positions.23 What
comes across in available literature is that no nation has a lock on the
meaning of the term; there is only a long line of practice that attaches
the term to a body established upon restoration of democracy after a
period of massive violence and repression.24The term truth
commission has been specifically used as a title for the body
investigating the human rights violations25 that attended past violence
and repression,26 and in some instances for a body working for
reconciliation in society.27
The traditional circumstances that give rise to the use of a truth
commission along the lines of established international practice are
not present in the Philippine setting. The Philippines has a new
democratically-elected President, whose election has been fully
accepted without protest by all presidential candidates and by the
people. A peaceful transition of administration took place, where
Congress harmoniously convened, with the past President now sitting
as a member of the House of Representatives. While charges of
human rights violations may have been lodged against the
government during the past administration, these charges are not
those addressed by EO 1.28Rather, EO 1 focuses entirely on graft and
corruption. Significantly, reconciliation does not appear to be a goal –
either in the EO, in the pleadings filed by the parties, or in the oral
arguments – thus, removing a justification for any massive
information campaign aimed at healing divisions that may exist in the
nation.
As a matter of law, that a body called a Truth Commission is tasked
to investigate past instances of graft and corruption would not per se
37
be an irregularity that should cause its invalidation. The use of the
word "truth" is not ordinarily a ground for objection. Not even the
Constitution itself defines or tells us what truth is; the Charter, fleshed
out by the statutes, can only outline the process of arriving at the
truth. After the Constitution and the statutes, however, have laid down
the prescribed procedure, then that procedure must be observed in
securing the truth. Any deviation could be a violation depending on
the attendant circumstances.
No international law can also prevent a sovereign country from using
the term as the title of a body tasked to investigate graft and
corruption affecting its citizens within its borders. At the same time,
international law cannot be invoked as a source of legitimacy for the
use of the title when it is not based on the internationally-recognized
conditions of its use.
No local law likewise specifically prohibits or regulates the use of the
term "truth commission." Apart from the procedural "deviation" above
adverted to, what may render the use of the term legally
objectionable is the standard of reason, applicable to all government
actions, as applied to the attendant circumstances surrounding the
use in the EO of the title Truth Commission.29 The use of this
standard is unavoidable since the title Truth Commission is used in a
public instrument that defines the Commission’s functions and affects
both the government and private parties.30 The Commission’s work
affects third parties as it is specifically tasked to investigate and
prosecute officials and employees of the previous administration. This
line of work effectively relates it to the processes of the criminal
justice system.
In the simplest due process terms, the EO – as a governmental
action – must have a reasonable objective and must use equally
reasonable means to achieve this objective.31 When the EO – viewed
from the prism of its title and its truth-telling function – is considered a
means of achieving the objective of fighting graft and corruption, it
would be invalid if it unreasonably or oppressively affects parties,
whether they be government or private.
C. THE COMMISSION’S FUNCTIONS
As worded, the EO establishes the Commission as an investigative
body tasked to act on cases of graft and corruption committed during
the previous administration. This is an area that the law has assigned
to the primary jurisdiction of the Ombudsman to investigate and
prosecute.32 If probable cause exists, these same cases fall under the
exclusive jurisdiction of the Sandiganbayan33 whose decisions are
appealable to the Supreme Court.34
Whether a Commission can engage in fact-finding, whose input can
aid the President in policy formulation, is not a disputed issue. What
is actively disputed is whether the Truth Commission shall undertake
its tasks in a purely investigative fact-finding capacity or in the
exercise of quasi-judicial powers. This issue impacts on the level of
fairness that should be observed (and the standard of reason that
should apply), and thus carries due process implications. Equally
important to the issue of due process are the function of truth-telling
and the effects of this function when considered with the title "Truth
Commission."
C.1. The Truth-Telling Function
The Solicitor General fully verbalized the truth-telling function when
he declared that it is a means of letting the people know the truth in
the allegations of graft and corruption against the past
administration.35 The Solicitor General, in response to the questions
of J. Sereno, said:
Justice Sereno: . . .I go now to the truth-telling part of the
commission. In other words, can you describe to us the truth telling
and truth seeking part of the commission?
Solicitor General Cadiz: Your Honor, of course our people will find
closure if aside from the truth finding of facts, those who have been
found by the body to have committed graft and corruption will
be prosecuted by the Ombudsman. It is. . .Your Honor, there is a
crime committed and therefore punishment must be meted out.
However, Your Honor, truth-telling part, the mere narration of
facts, the telling of the truth, will likewise I think to a certain
degree, satisfy our people.
38
Justice Sereno: Are you saying therefore the truth-telling, that the
narration like the other narrations in the past commissions has an
independent value apart from the recommendations to indict which
particular persons?
Solicitor General Cadiz: I agree Your Honor. And it is certainly, as the
EO says, it’s a Truth Commission the narration of facts by the
members of the Commission, I think, will be appreciated by the
people independent of the indictment that is expected likewise.
[Emphasis supplied.]
His statement is justified by the EO’s mandate to seek and find the
truth under Section 1; the opening to the public of the hearing and
proceedings under Section 6; and the publication of the
Commission’s final report under Section 15 of the EO.36
C.2. Legal Implications of Truth-Telling
Truth-telling, as its name connotes, does not exist solely for the sake
of "truth"; the "telling" side is equally important as the Solicitor
General impressed upon this Court during the oral arguments.37 Thus,
to achieve its objectives, truth-telling needs an audience to whom the
truth shall be told.38 This requirement opens up the reality that EO 1
really speaks in two forums.
The first forum, as expressly provided in the EO, is composed of the
persons to be investigated and the recipients of the Commission’s
reports who are expected to act on these reports, specifically, the
President (who needs investigative and policy formulation
assistance); Congress (who may use the Commission’s information
for its own legislative purposes); and the Ombudsman as the
investigative and prosecutory constitutional office39 to which, under
the EO, the Commission must forward its interim and final reports.
The Commission’s hearings and proceedings are important venues
for this forum, as this is where the investigated persons can defend
themselves against the accusations made. The element of policy
formulation, on the other hand, is present through the Commission’s
interim and final reports from which appropriate remedial policy
measures can be distilled. The element of truth-telling – in the sense
of communicating to the public the developments as they happen and
through the interim and final reports – exists but only plays a
secondary role, as the public is not a direct participant in this forum.
The second forum – not as explicitly defined as the first but which
must implicitly and necessarily be there – is that shared with the
general public as the audience to whom the President (through the
EO and the Truth Commission) wishes to tell the story of the
allegedly massive graft and corruption during the previous
administration. This is the distinct domain of truth-telling as the
Solicitor General himself impliedly admits in his quoted
arguments.40 Section 6 of the EO fully supports truth-telling, as it
opens up the Commission’s hearings or proceedings to the public
(and hence, to the mass media), subject only to an executive session
"where matters of national security or public safety are involved or
when the personal safety of the witness warrants the holding of such
executive or closed-door session hearing."
These separate forums are not distinguished merely for purposes of
academic study; they are there, plainly from the terms of the EO, and
carry clear distinctions from which separate legal consequences
arise.
Both forums involve third parties, either as persons to be investigated
or as part of the general public (in whose behalf criminal complaints
are nominally brought and who are the recipients of the
Commission’s truth-telling communications) so that, at the very least,
standards of fairness must be observed.41 In the investigative
function, the standard depends on whether the tasks performed are
purely investigative or are quasi-judicial, but this distinction is not very
relevant to the discussions of this opinion. In truth-telling, on the other
hand, the level of the required fairness would depend on the objective
of this function and the level of finality attained with respect to this
objective.42
In the first forum, no element of finality characterizes the
Commission’s reports since – from the perspective of the EO’s
express purposes of prosecution and policy formulation – they are
merely recommendatory and are submitted for the President’s,
Congress’ and the Ombudsman’s consideration. Both the President
and Congress may reject the reports for purposes of their respective
policy formulation activities; the Ombudsman may likewise
39
theoretically and nominally reject them (although with possibly
disastrous results as discussed below).
In the second forum, a very high element of finality exists as the
information communicated through the hearings, proceedings and the
reports are directly "told" the people as the "truth" of the graft and
corruption that transpired during the previous administration. In other
words, the Commission’s outputs are already the end products, with
the people as the direct consumers. In this sense, the element of
fairness that must exist in the second forum must approximate the
rights of an accused in a criminal trial as the consequence of truth-
telling is no less than a final "conviction" before the bar of public
opinion based on the "truth" the Commission "finds." Thus, if the
Commission is to observe the rights of due process as Rule 1,
Section 4 of its Rules guarantees, then the right of investigated
persons to cross-examine witnesses against them,43 the right against
self-incrimination,44 and all the rights attendant to a fair trial must be
observed. The rights of persons under investigation under Section 12
of the Bill of Rights of the Constitution45 must likewise be respected.
II. THE EO’S LEGAL INFIRMITIES.
A. THE TITLE "TRUTH COMMISSION" + THE TRUTH-TELLING
FUNCTION = VIOLATION OF DUE PROCESS
A.1. The Impact of the Commission’s "Truth"
The first problem of the EO is its use of the title "Truth Commission"
and its objective of truth-telling; these assume that what the Truth
Commission speaks of is the "truth" because of its title and of its
truth-telling function; thus, anything other than what the Commission
reports would either be a distortion of the truth, or may even be an
"untruth."
This problem surfaced during the oral arguments on queries about
the effect of the title "Truth Commission" on the authority of the duly
constituted tribunals that may thereafter rule on the matters that the
Commission shall report on.46 Since the Commission’s report will
constitute the "truth," any subsequent contrary finding by the
Ombudsman47 would necessarily be suspect as an "untruth;" it is up
then to the Ombudsman to convince the public that its findings are
true.
To appreciate the extent of this problem, it must be considered that
the hearings or proceedings, where charges of graft and corruption
shall be aired, shall be open to the public. The Commission’s report
shall likewise be published.48 These features cannot but mean full
media coverage.
Based on common and usual Philippine experience with its very
active media exemplified by the recent taking of Chinese and
Canadian hostages at the Luneta, a full opening to the media of the
Commission’s hearings, proceedings and reports means a veritable
media feast that, in the case of the Truth Commission, shall occur on
small but detailed daily doses, from the naming of all the persons
under investigation all the way up to the Commission’s final report. By
the time the Commission report is issued, or even before then, the
public shall have been saturated with the details of the charges made
through the publicly-aired written and testimonial submissions of
witnesses, variously viewed from the vantage points of straight
reporting, three-minute TV news clips, or the slants and personal
views of media opinion writers and extended TV coverage. All these
are highlighted as the power of the media and the environment that it
creates can never be underestimated. Hearing the same "truth" on
radio and television and seeing it in print often enough can affect the
way of thinking and the perception, even of those who are
determined, in their conscious minds, to avoid bias.49
As expected, this is a view that those supporting the validity of the EO
either dismisses as an argument that merely relies on a replaceable
name,50 or with more general argument couched under the question
"Who Fears the Truth."51
The dismissive argument, to be sure, would have been meritorious if
only the name Truth Commission had not been supported by the
Commission’s truth-telling function; or, if the name "Truth
Commission" were a uniquely Filipino appellation that does not carry
an established meaning under international practice and usage. Even
if it were to be claimed that the EO’s use of the name is unique
because the Philippines’ version of the Truth Commission addresses
past graft and corruption and not violence and human rights violations
40
as in other countries, the name Truth Commission, however, cannot
simply be dissociated from its international usage. The term connotes
abuses of untold proportions in the past by a repressive undemocratic
regime – a connotation that may be applicable to the allegations of
graft and corruption, but is incongruous when it did not arise from a
seriously troubled regime; even the present administration cannot
dispute that it assumed office in a peaceful transition of power after
relatively clean and peaceful elections.
The "Who Fears the Truth?" arguments, on the other hand,
completely miss the point of this Separate Opinion. This Opinion does
not dispute that past graft and corruption must investigated and fully
exposed; any statement to the contrary in the Dissent are unfounded
rhetoric written solely for its own partisan audience. What this Opinion
clearly posits as legally objectionable is the government’s manner of
"telling;" any such action by government must be made according to
the norms and limits of the Constitution to which all departments of
government – including the Executive – are subject. Specifically, the
Executive cannot be left unchecked when its methods grossly violate
the Constitution. This matter is discussed in full below.
A.2. Truth-telling and the Ombudsman
To return to the scenario described above, it is this scenario that will
confront the Ombudsman when the Commission’s report is submitted
to it. At that point, there would have been a full and extended public
debate heavily influenced by the Commission’s "truthful" conclusions.
Thus, when and if the Ombudsman finds the evidence from the report
unconvincing or below the level that probable cause requires, it
stands to incur the public ire, as the public shall have by then been
fully informed of the "facts" and the "truth" in the Commission’s report
that the Ombudsman shall appear to have disregarded.
This consequence does not seem to be a serious concern for the
framers and defenders of the EO, as the Commission’s truth-telling
function by then would have been exercised and fully served. In the
Solicitor General’s words "Your Honor, there is crime committed and
therefore punishment must be meted out. However, your Honor,
truth-telling part, the mere narration of facts, the telling of the truth,
will likewise I think to a certain degree satisfy our people." On the
question of whether truth-telling has an independent value separate
from the indictment - he said: "And it is certainly, as the EO says, it’s
a Truth Commission the narration of facts by the members of the
Commission, I think, will be appreciated by the people independent of
the indictment that is expected likewise."52
In other words, faced with the findings of the Commission, the
Ombudsman who enters a contrary ruling effectively carries the
burden of proving that its findings, not those of the Commission, are
correct. To say the least, this resulting reversal of roles is legally
strange since the Ombudsman is the body officially established and
designated by the Constitution to investigate graft and other crimes
committed by public officers, while the Commission is a mere
"creation" of the Executive Order. The Ombudsman, too, by statutory
mandate has primary jurisdiction over the investigation and
prosecution of graft and corruption, while the Commission’s role is
merely recommendatory.
Thus, what the EO patently expresses as a primary role for the
Commission is negated in actual application by the title Truth
Commission and its truth-telling function. Expressed in terms of the
forums the EO spawned, the EO’s principal intent to use the Truth
Commission as a second forum instrument is unmasked; the first
forum – the officially sanctioned forum for the prosecution of crimes –
becomes merely a convenient cover for the second forum.
A.3. Truth-telling and the Courts
The effects of truth-telling could go beyond those that affect the
Ombudsman. If the Ombudsman concurs with the Commission and
brings the recommended graft and corruption charges before the
Sandiganbayan – a constitutionally-established court – this court itself
would be subject to the same truth-telling challenge if it decides to
acquit the accused. For that matter, even this Court, will be perceived
to have sided with an "untruth" when and if it goes against the
Commission’s report. Thus, the authority, independence, and even
the integrity of these constitutional bodies – the Ombudsman, the
Sandiganbayan, and the Supreme Court – would have been
effectively compromised, to the prejudice of the justice system. All
these, of course, begin with the premise that the Truth Commission
has the mandate to find the "truth," as it name implies, and has a
41
truth-telling function that it can fully exercise through its own efforts
and through the media.
A.4. Truth-telling and the Public.
A.4.1. Priming and Other Prejudicial Effects.
At this point in the political development of the nation, the public is
already a very critical audience who can examine announced results
and can form its own conclusions about the culpability or innocence
of the investigated persons, irrespective of what conclusions
investigative commissions may arrive at. This is a reality that cannot
be doubted as the public has been exposed in the past to these
investigative commissions.
The present Truth Commission operating under the terms of the EO,
however, introduces a new twist that the public and the country have
not met before. For the first time, a Truth Commission, tasked with a
truth-telling function, shall speak on the "truth" of what acts of graft
and corruption were actually committed and who the guilty parties
are. This official communication from a governmental body – the
Truth Commission – whose express mandate is to find and "tell the
truth" cannot but make a difference in the public perception.
At the very least, the widely-publicized conclusions of the Truth
Commission shall serve as a mechanism for "priming" 53 the public,
even the Ombudsman and the courts, to the Commission’s way of
thinking. Pervasively repeated as an official government
pronouncement, the Commission’s influence can go beyond the
level of priming and can affect the public environment as well as
the thinking of both the decision makers in the criminal justice
system and the public in general.
Otherwise stated, the Commission’s publicly announced conclusions
cannot but assume the appearance of truth once they penetrate and
effectively color the public’s perception, through repetition without
significant contradiction as official government findings. These
conclusions thus graduate to the level of "truth" in self-fulfillment of
the name the Commission bears; the subtle manipulation of the
Commission’s name and functions, fades in the background or simply
becomes explainable incidents that cannot defeat the accepted truth.
A very interesting related material about the effect of core beliefs on
the decision-making of judges is the point raised by United States
Supreme Court Associate Justice Benjamin N. Cardozo54 in his book
The Nature of the Judicial Process55 where he said:
… Of the power of favour or prejudice in any sordid or vulgar or evil
sense, I have found no trace, not even the faintest, among the judges
whom I have known. But every day there is borne in on me a new
conviction of the inescapable relation between the truth without us
and the truth within. The spirit of the age, as it is revealed to each of
us, is too often only the spirit of the group in which the accidents of
birth or education or occupation or fellowship have given us place. No
effort or revolution of the mind will overthrow utterly and at all times
the empire of the subconscious loyalties. "Our beliefs and opinions,"
says James Harvey Robinson, "like our standards of conduct come to
us insensibly as products of our companionship with our fellow men,
not as results of our personal experience and the inferences we
individually make from our own observations. We are constantly
misled by our extraordinary faculty of ‘rationalizing’ – that is, of
devising plausible arguments by accepting what is imposed upon us
by the traditions of the group to which we belong. We are abjectly
credulous by nature, and instinctively accept the verdict of the group.
We are suggestible not merely when under the spell of an excited
mob, or a fervent revival, but we are ever and always listening to the
still small voice of the herd, and are ever ready to defend and justify
the instructions and warnings, and accept them as the mature results
of our own reasoning." This was written, not of judges specially, but of
men and women of all classes.56 [Emphasis supplied]
Thus, Justice Cardozo accepted that "subconscious loyalties" to the
"spirit" of the group, i.e., the core beliefs within, is a major factor that
affects the decision of a judge. In the context of EO 1, that "spirit" or
core belief is what a generally trusted government’s57 repeated
invocation of "truth" apparently aims to reach. This goal assumes
significance given the Solicitor General’s statement that truth-telling is
an end in itself. Read with what Justice Cardozo said, this goal
translates to the more concrete and currently understandable aim
– to establish the "truth" as part of the accepted public belief; the
42
EO’s aim is achieved irrespective of what the pertinent adjudicatory
bodies may conclude, as even they could be influenced by the
generally accepted "truth."
Further on, Justice Cardozo, speaking in the context of the
development of case law in common law, went on to say, quoting
Henderson:58
When an adherent to a systematic faith is brought continuously in
touch with influences and exposed to desires inconsistent with that
faith, a process of unconscious cerebration may take place, by which
a growing store of hostile mental inclinations may accumulate,
strongly motivating action and decision, but seldom emerging clearly
into consciousness. In the meantime, the formulas of the old faith are
retained and repeated by force of habit, until one day the realization
comes that conduct and sympathies and fundamental desires have
become so inconsistent with the logical framework that it must be
discarded. Then begins the task of building up and rationalizing a
new faith.
Although written in another context, this statement – relating to how
one’s belief is supplanted by another – runs parallel to how the belief
system of an individual judge can be subtly affected by inconsistent
influences and how he ultimately succumbs to a new belief.
Without doubt, the process of converting to a new belief is an
unavoidable and continuous process that every decision maker
undergoes as the belief system he started with, changes and evolves
through in-court experiences and exposure to outside influences.
Such exposure cannot be faulted, particularly when brought on by the
media working pursuant to its exercise of the freedoms of the press
and speech, and speaking in the course of the clash of ideas in the
public forum. The same exposure, however, is not as neutral and
fault-free when it is precipitated by the government acting as a
catalytic agent to hasten the achievement of its own ends, in this
case, the disclosure of the "truth" regarding the alleged graft and
corruption during the previous regime.
In the context of the EO, the Executive can investigate within the
limits of its legal parameters and can likewise publicize the results of
its investigations to the full limit of allowable transparency. But in so
doing, it cannot act as catalyst by labelling the action of the
Commission it has created as officially-sanctioned and authoritative
truth-telling before the officially-designated bodies – the Ombudsman
and the courts – have spoken. While the emergence of truth is a
basic and necessary component of the justice system, the truth-
seeking and truth-finding processes cannot be speeded up through
steps that shortcut and bypass processes established by the
Constitution and the laws. As heretofore mentioned, the international
experiences that gave rise to the title Truth Commission were
transitional situations where, for peculiar reasons (such as the
temporary absence of an established judicial system or the need to
speed up the transition to democratic rule), the use of ad hoc
commissions were called for. In the Philippine setting, the closest
similar situation would be the immediate aftermath of the 1986 EDSA
Revolution as the country struggled in the transition from authoritarian
martial law regime into a full-fledged democracy. To be sure, the
shortcut to the emergence of truth, fashioned under the terms of
EO 1, finds no justification after the 1987 Constitution and its
rights, freedoms and guarantees have been fully put in place.
A.4.2. The Effects on the Judicial System
To fully appreciate the potential prejudicial effects of truth-telling on
the judicial system, the effects of media exposure – from the point of
view of what transpires and the circumstances present under truth-
telling and under the present justice system – deserve examination.
Under the present justice system, the media may fully report, as they
do report, all the details of a reported crime and may even give the
suspects detailed focus. These reports, however, are not branded as
the "truth" but as matters that will soon be brought to the appropriate
public authorities for proper investigation and prosecution, if
warranted. In the courts, cases are handled on the basis of the rules
of evidence and with due respect for the constitutional rights of the
accused, and are reported based on actual developments, subject
only to judicial requirements to ensure orderly proceedings and the
observance of the rights of the accused. Only after the courts have
finally spoken shall there be any conclusive narrative report of what
actually transpired and how accused individuals may have
participated in committing the offense charged. At this point, any
43
public report and analysis of the findings can no longer adversely
affect the constitutional rights of the accused as they had been given
all the opportunities to tell their side in court under the protective
guarantees of the Constitution.
In contrast, the circumstances that underlie Commission reports are
different. The "truth" that the Commission shall publicize shall be
based on "facts" that have not been tested and admitted according to
the rules of evidence; by its own express rules, the technical rules of
evidence do not apply to the Commission.59 The reported facts may
have also been secured under circumstances violative of the rights of
the persons investigated under the guarantees of the Constitution.
Thus, what the Commission reports might not at all pass the tests of
guilt that apply under the present justice system, yet they will be
reported with the full support of the government as the "truth" to the
public. As fully discussed below, these circumstances all work to the
active prejudice of the investigated persons whose reputations, at the
very least, are blackened once they are reported by the Commission
as participants in graft and corruption, even if the courts subsequently
find them innocent of these charges.
A.5. Truth-telling: an unreasonable means to a reasonable objective.
Viewed from the above perspectives, what becomes plainly evident is
an EO that, as a means of fighting graft and corruption, will effectively
and prejudicially affect the parties inter-acting with the Truth
Commission. The EO will erode the authority and even the integrity of
the Ombudsman and the courts in acting on matters brought before
them under the terms of the Constitution; its premature and "truthful"
report of guilt will condition the public’s mind to reject any finding
other than those of the Commission.
Under this environment, the findings or results of the second forum
described above overwhelm the processes and whatever may be the
findings or results of the first forum. In other words, the findings or
results of the second forum – obtained without any assurance of the
observance of constitutional guarantees – would not only create
heightened expectations and exert unwanted pressure, but even
induce changed perceptions and bias in the processes of the first
forum in the manner analogous to what Justice Cardozo described
above. The first casualties, of course, are the investigated persons
and their basic rights, as fully explained elsewhere in this Opinion.
While EO 1 may, therefore, serve a laudable anti-graft and corruption
purpose and may have been launched by the President in good faith
and with all sincerity, its truth-telling function, undertaken in the
manner outlined in the EO and its implementing rules, is not a means
that this Court can hold as reasonable and valid, when viewed from
the prism of due process. From this vantage point, the Commission is
not only a mislabelled body but one whose potential outputs must as
well be discarded for being unacceptable under the norms of the
Constitution.
B. DISTORTION OF EXISTING LEGAL FRAMEWORK
The EO and its truth-telling function must also be struck down as they
distort the constitutional and statutory plan of the criminal justice
system without the authority of law and with an unconstitutional
impact on the system.
B.1. The Existing Legal Framework
The Constitution has given the country a well-laid out and balanced
division of powers, distributed among the legislative, executive and
judicial branches, with specially established offices geared to
accomplish specific objectives to strengthen the whole constitutional
structure.
The Legislature is provided, in relation with the dispensation of
justice, the authority to create courts with defined jurisdictions below
the level of the Supreme Court;60 to define the required qualifications
for judges;61 to define what acts are criminal and what penalties they
shall carry;62 and to provide the budgets for the courts.63
The Executive branch is tasked with the enforcement of the laws that
the Legislature shall pass. In the dispensation of justice, the
Executive has the prerogative of appointing justices and judges,64 and
the authority to investigate and prosecute crimes through a
Department of Justice constituted in accordance the Administrative
Code.65 Specifically provided and established by the Constitution, for
44
a task that would otherwise fall under the Executive’s investigatory
and prosecutory authority, is an independent Ombudsman for the
purpose of acting on, investigating and prosecuting allegedly criminal
acts or omissions of public officers and employees in the exercise of
their functions. While the Ombudsman’s jurisdiction is not exclusive, it
is primary; it takes precedence and overrides any investigatory and
prosecutory action by the Department of Justice.66
The Judiciary, on the other hand, is given the task of standing in
judgment over the criminal cases brought before it, either at the first
instance through the municipal and the regional trial courts, or on
appeal or certiorari, through the appellate courts and ultimately to the
Supreme Court.67 An exception to these generalities is the
Sandiganbayan, a special statutorily-created court with the exclusive
jurisdiction over criminal acts committed by public officers and
employees in the exercise of their functions.68 Underlying all these is
the Supreme Court’s authority to promulgate the rules of procedure
applicable to courts and their proceedings,69 to appoint all officials
and employees of the Judiciary other than judges,70 and to exercise
supervision over all courts and judiciary employees.71
In the usual course, an act allegedly violative of our criminal laws may
be brought to the attention of the police authorities for unilateral fact-
finding investigation. If a basis for a complaint exists, then the matter
is brought before the prosecutor’s office for formal investigation,
through an inquest or a preliminary investigation, to determine if
probable cause exists to justify the filing of a formal complaint or
information before the courts. Aside from those initiated at the
instance of the aggrieved private parties, the fact-finding investigation
may be made at the instance of the President or of senior officials of
the Executive branch, to be undertaken by police authorities, by the
investigatory agencies of the Department of Justice, or by specially
constituted or delegated officials or employees of the Executive
branch; the preliminary investigation for the determination of probable
cause is a task statutorily vested in the prosecutor’s office.72 Up to
this point, these activities lie within the Executive branch of
government and may be called its extrajudicial participation in the
justice system.
By specific authority of the Constitution and the law, a deviation from
the above general process occurs in the case of acts allegedly
committed by public officers and employees in the performance of
their duties where, as mentioned above, the Ombudsman has
primary jurisdiction. While the Executive branch itself may undertake
a unilateral fact-finding, and the prosecutor’s office may conduct
preliminary investigation for purposes of filing a complaint or
information with the courts, the Ombudsman’s primary jurisdiction
gives this office precedence and dominance once it decides to take
over a case.73
Whether a complaint or information emanates from the prosecutor’s
office or from the Ombudsman, jurisdiction to hear and try the case
belongs to the courts, mandated to determine – under the formal
rules of evidence of the Rules of Court and with due observance of
the constitutional rights of the accused – the guilt or innocence of the
accused. A case involving criminal acts or omissions of public officers
and employees in the performance of duties falls at the first instance
within the exclusive jurisdiction of the Sandiganbayan,74 subject to
higher recourse to the Supreme Court. This is the strictly judicial
aspect of the criminal justice system.
Under the above processes, our laws have delegated the handling of
criminal cases to the justice system and there the handling should
solely lie, supported by all the forces the law can muster, until the
disputed matter is fully resolved. The proceedings – whether before
the Prosecutor’s Office, the Ombudsman, or before the courts – are
open to the public and are thereby made transparent; freedom of
information75 and of the press76 guarantee media participation,
consistent with the justice system’s orderly proceedings and the
protection of the rights of parties.
The extrajudicial intervention of the Commission, as provided in the
EO, even for the avowed purpose of "assisting" the Ombudsman,
directly disrupts the established order, as the Constitution and the law
do not envision a situation where fact-finding
recommendations, already labelled as "true," would be submitted to
the Ombudsman by an entity within the Executive branch. This
arrangement is simply not within the dispensation of justice scheme,
as the determination of whether probable cause exists cannot be
defeated, rendered suspect, or otherwise eroded by any prior process
whose results are represented to be the "truth" of the alleged criminal
acts. The Ombudsman may be bound by the findings of a court,
45
particularly those of this Court, but not of any other body, most
especially a body outside the regular criminal justice system. Neither
can the strictly judicial aspect of the justice system be saddled with
this type of fact-finding, as the determination of the guilt or innocence
of an accused lies strictly and solely with the courts. Nor can the EO
cloak its intent of undercutting the authority of the designated
authorities to rule on the merits of the alleged graft and corruption
through a statement that its findings are recommendatory; as has
been discussed above, this express provision is negated in actual
application by the title Truth Commission and its truth-telling function.
A necessary consequence of the deviation from the established
constitutional and statutory plan is the extension of the situs of the
justice system from its constitutionally and statutorily designated
locations (equivalent to the above-described first forum), since the
Commission will investigate matters that are bound to go to the
justice system. In other words, the Commission’s activities, including
its truth-telling function and the second forum this function creates,
become the prelude to the entry of criminal matters into the
Ombudsman and into the strictly judicial aspect of the system.
In practical terms, this extension undermines the established order in
the judicial system by directly bringing in considerations that are
extraneous to the adjudication of criminal cases, and by co-mingling
and confusing these with the standards of the criminal justice system.
The result, unavoidably, is a qualitative change in the criminal justice
system that is based, not on a legislative policy change, but on an
executive fiat.
Because of truth-telling and its consequence of actively bringing in
public opinion as a consideration, standards and usages other than
those strictly laid down or allowed by the Constitution, by the laws
and by the Rules of Court will play a part in the criminal justice
system. For example, public comments on the merits of cases that
are still sub judice may become rampant as comments on a truth
commission’s findings, not on the cases pending before the courts.
The commission’s "truthful" findings, made without respect for the
rules on evidence and the rights of the accused, would become the
standards of public perception of and reaction to cases, not the
evidence as found by the courts based on the rules of evidence.
Once the door is opened to the Truth Commission approach and
public opinion enters as a consideration in the judicial handling of
criminal cases, then the rules of judging would have effectively
changed; reliance on the law, the rules and jurisprudence would have
been weakened to the extent that judges are on the lookout, not only
for what the law and the rules say, but also for what the public feels
about the case. In this eventuality, even a noisy minority can change
the course of a case simply because of their noise and the media
attention they get. (Such tactics have been attempted in the
immediate past where pressure has been brought to bear on this
Court through street demonstrations bordering on anarchy, the
marshalling of opinions locally and internationally, and highly partisan
media comments.) The primacy of public opinion may, without doubt,
appeal to some but this is simply not the way of a Judiciary
constitutionally-designed to follow the rule of law.
Another consequent adverse impact could be erosion of what the
Constitution has very carefully fashioned to be a system where the
interpretation of the law and the dispensation of justice are to be
administered apolitically by the Judiciary. Politics always enters the
picture once public opinion begins to be a significant consideration. At
this point, even politicians – ever attuned to the public pulse – may
register their own statements in the public arena on the merits of the
cases even while matters are sub judice. The effects could be worse
where the case under consideration carries its own political
dimensions, as in the present case where the target involves the
misdeeds of the previous administration.
Whether the Judiciary shall involve, or be involved, in politics, or
whether it should consider, or be affected by, political considerations
in adjudication, has been firmly decided by the Constitution and our
laws in favour of insulation through provisions on the independence
of the Judiciary – the unelected branch of government whose
standard of action is the rule of law rather than the public pulse. This
policy has not been proven to be unsound. Even if it is unsound, any
change will have to be effected through legitimate channels – through
the sovereignty that can change the Constitution, to the extent that
the Judiciary’s and the Ombudsman’s independence and the exercise
of judicial discretion are concerned, and through the Congress of the
Philippines, with respect to other innovations that do not require
constitutional changes.
46
To be sure, the President of the Philippines, through an executive or
administrative order and without authority of law, cannot introduce
changes or innovations into the justice system and significantly water
down the authoritative power of the courts and of duly designated
constitutional bodies in dispensing justice. The nobility of the
President’s intentions is not enough to render his act legal. As has
been said often enough, ours is a government of laws, not of men.
C. LIMITS OF THE EXERCISE OF EXECUTIVE POWER IN THE
JUSTICE SYSTEM
While the Executive participates in the dispensation of justice under
our constitutional and statutory system through its investigatory and
prosecutory arms and has every authority in law to ensure that the
law is enforced and that violators are prosecuted, even these powers
have limits.
The independence of the Ombudsman and its freedom from
interference from all other departments of government in the
performance of its functions is a barrier that cannot be breached,
directly or indirectly, except only as the Constitution and the laws may
allow. No such exception has been allowed or given to the President
other than through the prosecution the Department of Justice may
undertake77 when the Ombudsman has not asserted its primary
jurisdiction. The concurrent jurisdiction given to the Department of
Justice to prosecute criminal cases, incidentally, is a grant specific to
that office,78 not to any other office that the Executive may create
through an executive order.
The Executive can, without doubt, recommend that specific violators
be prosecuted and the basis for this recommendation need not even
come from the Department of Justice; the basis may be the findings
of the Office of the President itself independently of its Department of
Justice. Notably, the other branches of government may also, and do
in fact, make recommendations to the Ombudsman in the way that
Congress, in the course of its fact-finding for legislative purposes,
unearths anomalies that it reports to the Ombudsman. Even the
Supreme Court recommends that Judiciary officials and employees
found administratively liable be also criminally prosecuted.
The Executive can also designate officials and employees of the
Executive Department (or even appoint presidential assistants or
consultants)79 to undertake fact-finding investigation for its use
pursuant to the vast powers and responsibilities of the Presidency,
but it cannot create a separate body, in the way and under the terms
it created the Truth Commission, without offending the Constitution.
The following indicators, however, show that the President was not
simply appointing presidential assistants or assistants when he
constituted the Truth Commission as an investigating or fact-finding
body.
First, the President "created" the Truth Commission; the act of
creation goes beyond the mere naming, designation or appointment
of assistants and consultants. There is no need to "create" – i.e., to
constitute or establish something out of nothing, or to establish for the
first time80 – if only the designation or appointment of a presidential
assistant or consultant is intended. To "create" an office, too, as the
petitioners rightfully claim, is a function of the Legislature under the
constitutional division of powers.81 Note in this regard, and as more
fully discussed below, that what the Revised Administrative Code,
through its Section 31, allows the President is to "reorganize," not to
create a public office within the Executive department.
Second, the Truth Commission, as created by the EO, appears to be
a separate body82 that is clearly beyond being merely a group of
people tasked by the President to accomplish a specific task within
his immediate office; its members do not operate in the way that
presidential assistants and consultants usually do.
It is not insignificant that the Commission has its own Rules of
Procedure that it issued on its own on the authority of the EO. Note
that these are not the rules of the Office of the President but of
another body, although one constituted by the President.
The Commission has its own complete set of officers, beginning from
the Chair and members of the Commission; it has its own
consultants, experts, and employees, although the latter are merely
drawn from the Executive department;83 and it even has provisions for
47
its own budget, although these funds ride on and are to be drawn
from the budget of the Office of the President.
Third, the Commission has its own identity, separate and distinct from
the Office of the President, although it still falls within the structural
framework of that office. The Commission undertakes its own
"independent" investigation84that, according to the Solicitor General,
will not be controlled by the Office of the President;85 and it
communicates on its own, under its own name, to other branches of
government outside of the Executive branch.
Lastly, the Commission as an office has been vested with functions
that not even the Office of the President possesses by authority of
law, and which the President, consequently, cannot delegate.
Specifically, the Commission has its truth-telling function, because it
has been given the task to disclose the "truth" by the President, thus
giving its report the imprimatur of truth well ahead of any
determination in this regard by the constitutional bodies authorized to
determine the existence of probable cause and the guilt or culpability
of individuals.
If the President cannot give the official label of truth independently of
the courts in a fact-finding in a criminal case, either by himself or
through the Department of Justice, it only follows that he cannot
delegate this task to any assistant, consultant, or subordinate, even
granting that he can order a fact-finding investigation based on the
powers of his office. This truth-telling function differentiates the Truth
Commission from other commissions constituted in the past such as
the Agrava, Feliciano and Melo Commissions; the pronouncements of
the latter bodies did not carry the imprimatur of truth, and were mere
preliminary findings for the President’s consideration. An exact recent
case to drive home this point is the Chinese hostage incident where
the Office of the President modified the Report submitted by a duly-
constituted group headed by Secretary Leila de Lima.86 Apparently,
the findings of the De Lima committee did not carry the imprimatur of
truth and were merely recommendatory; otherwise the Office of the
President would not have modified its findings and
recommendations.
Still on the point of the President’s authority to delegate tasks to a
body he has constituted, in no case can the President order a fact-
finding whose results will operate to undercut the authority and
integrity of the Ombudsman in a reported violation of the criminal
laws by a public servant. The President’s authority – outside of the
instance when the Department of Justice acts in default of the
Ombudsman – is to bring to the attention of, or make
recommendations to, the Ombudsman violations of the law that the
Executive branch uncovers in the course of law enforcement. This
authority should be no different from that which Congress and the
Supreme Court exercise on the same point.
Given all the possibilities open to the President for a legitimate fact-
finding intervention – namely, through fact-finding by the Department
of Justice or by the Office of the President itself, utilizing its own
officials, employees, consultants or assistants – the President is not
wanting in measures within the parameters allowed by law to fight
graft and corruption and to address specific instances that come to
his attention. To be sure, the Philippine situation right now is far from
the situations in South Africa, Rwanda, and South America,87 where
quick transitional justice88had to be achieved because these countries
were coming from a period of non-democratic rule and their desired
justice systems were not yet fully in place. This reality removes any
justification for the President to resort to extralegal (or even illegal)
measures and to institutions and mechanisms outside of those
already in place, in proceeding against grafters in the previous
administration.
If the President and Congress are dissatisfied with the Ombudsman’s
performance of duty, the constitutionally-provided remedy is to
impeach the Ombudsman based on the constitutionally-provided
grounds for removal. The remedy is not through the creation of a
parallel office that either duplicates or renders ineffective the
Ombudsman’s actions. By the latter action, the President already
situates himself and the Executive Department into the justice system
in a manner that the Constitution and the law do not allow.
D. THE PRESIDENT HAS NO AUTHORITY EITHER UNDER THE
CONSTITUTION OR UNDER THE LAWS TO CREATE THE TRUTH
COMMISSION.
Under the 1987 Constitution, the authority to create offices is lodged
exclusively in Congress. This is a necessary implication89 of its
48
"plenary legislative power."90 Thus, except as otherwise provided by
the Constitution or statutory grant, no public office can be created
except by Congress; any unauthorized action in this regard violates
the doctrine of separation of powers.
In essence, according to Father Joaquin Bernas, "separation of
powers means that legislation belongs to Congress, execution to the
executive, settlement of legal controversies to the judiciary."91 This
means that the President cannot, under the present Constitution and
in the guise of "executing the laws," perform an act that would
impinge on Congress’ exclusive power to create laws, including the
power to create a public office.
In the present case, the exclusive authority of Congress in creating a
public office is not questioned. The issue raised regarding the
President’s power to create the Truth Commission boils down to
whether the Constitution allows the creation of the Truth Commission
by the President or by an act of Congress.
D.1 The Section 31 Argument.
EO 1, by its express terms, 92 is premised on "Book III, Chapter 10,
Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, which gives the
President the
continuing authority to reorganize the Office of the President. The
Solicitor General, of course, did not steadfastly hold on to this view; in
the course of the oral arguments and in his Memorandum, he invoked
other bases for the President’s authority to issue EO 1. In the
process, he likewise made various claims, not all of them consistent
with one another, on the nature of the Truth Commission that EO 1
created.
Section 31 shows that it is a very potent presidential power, as it
empowers him to (1) to re-organize his own internal office; (2)
transfer any function or office from the Office of the President to the
various executive departments; and (3) transfer any function or office
from the various executive departments to the Office of the
President.
To reorganize presupposes that an office is or offices are already
existing and that (1) a reduction is effected, either of staff or of its
functions, for transfer to another or for abolition because of
redundancy; (2) offices are merged resulting in the retention of one
as the dominant office; (3) two offices are abolished resulting in the
emergence of a new office carrying the attributes of its predecessors
as well as their responsibilities; or (4) a new office is created by
dividing the functions and staff of an existing office. Buklod ng
Kawaning EIIB v. Hon. Executive Secretary addresses this point
when it said:
[R]eorganization involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of
functions. It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of
control, authority and responsibility between them.93
These traditional concepts of reorganization do not appear to have
taken place in the establishment of the Truth Commission. As
heretofore mentioned, by its plain terms, it was "created" and did not
simply emerge from the functions or the personality of another office,
whether within or outside the Office of the President. Thus, it is a
completely new body that the President constituted, not a body that
appropriated the powers of, or derived its powers from, the
investigatory and prosecutory powers of the Department of Justice or
any other investigatory body within the Executive branch.
From the Solicitor General’s Memorandum, it appears that the
inspiration for the EO came from the use and experiences of truth
commissions in other countries that were coming from "determinate
periods of abusive rule or conflict" for purposes of making
"recommendations for [the] redress and future prevention"94 of similar
abusive rule or conflict. It is a body to establish the "truth of what
abuses actually happened in the past;" the Solicitor General even
suggests that the "doctrine of separation of powers and the extent of
the powers of co-equal branches of government should not be so
construed as to restrain the Executive from uncovering the truth
about betrayals of public trust, from addressing their enabling
conditions, and from preventing their recurrence."95 By these
perorations, the Solicitor General unwittingly strengthens the view
that no reorganization ever took place when the Truth Commission
49
was created; what the President "created" was a new office that does
not trace its roots to any existing office or function from the Office of
the President or from the executive departments and agencies he
controls.
Thus, the President cannot legally invoke Section 31 to create the
Truth Commission. The requirements for the application of this
Section are simply not present; any insistence on the use of this
Section can only lead to the invalidity of EO 1.
D.2. The PD 1416 and Residual Powers Argument
Independently of the EO’s express legal basis, the Solicitor-General
introduced a new basis of authority, theorizing that "the power of the
President to reorganize the executive branch" is justifiable under
Presidential Decree (PD) No. 1416, as amended by PD No. 1772,
based on the President’s residual powers under Section 20, Title I,
Book III of E.O. No. 292." He cites in this regard the case of Larin v.
Executive Secretary96 and according to him:
x x x This provision speaks of such other powers vested in the
President under the law. What law then which gives him the power to
reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the
President of the Philippines the continuing authority to reorganize the
national government, which includes the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities and to
standardize salaries and materials. The validity of these two decrees
are unquestionable. The 1987 Constitution clearly provides that "all
laws, decrees, executive orders, proclamations, letters of instructions
and other executive issuances not inconsistent with this Constitution
shall remain operative until amended, repealed or revoked." So far,
there is yet no law amending or repealing said decrees.97 [Emphasis
supplied]
Unfortunately, even the invocation of the transitory clause of the 1987
Constitution (regarding the validity of laws and decrees not
inconsistent with the Constitution) cannot save EO 1, as PD 1416 is a
legislation that has long lost its potency.
Contemporary history teaches us that PD 1416 was passed under
completely different factual and legal milieus that are not present
today, thus rendering this presidential decree an anachronism that
can no longer be invoked.
Prior to the EDSA Revolution of 1986 (and the 1987 Constitution),
President Marcos exercised legislative powers and issued PD 1416,
as amended by PD 1772, which, by its express terms, allowed the
President to reorganize and/or create offices within the National
Government. This was sanctioned in the exercise of the President’s
martial law powers and on the basis of Article XVII, Section 3(2) of
the 1973 Constitution.98
Upon the adoption of the 1987 Constitution, and the re-introduction of
the presidential form of government, the "separation of legislative and
executive powers"99 was restored. Similarly recognized were the limits
on the exercise of the carefully carved-out and designated powers of
each branch of government. Thus, Congress regained the exclusive
power to create public offices; PD 1416, as amended by PD 1776 – a
creation of the legal order under President Marcos – lost its authority
as a justification for the creation of an office by the President.
That PD 1416, as amended by PD 1776, has been overtaken and
rendered an obsolete law, is not a new position taken within this
Court. In his separate concurring opinion in Banda v. Executive
Secretary,100 Justice Antonio T. Carpio pointedly posited that the
ruling in Larin v. Executive Secretary101 (reiterated in Buklod ng
Kawaning EIIB v. Hon. Sec. Zamora102 and Tondo Medical Center
Employees Association v. Court of Appeals103), which relied on
Section 20, Chapter 7, Book II of the Administrative Code of 1987 in
relation with P.D. 1416, cannot validate Executive Order No. 378
assailed in that case because "P.D. 1416, as amended, with its
blending of legislative and executive powers, is a vestige of an
autrocratic era, totally anachronistic to our present-day constitutional
democracy." 104
Thus, the present and firmly established legal reality is that under the
1987 Constitution and the Revised Administrative Code, the
President cannot create a public office except to the extent that he is
allowed by Section 31, Chapter 10, Book III of the Revised
Administrative Code. As discussed above, even this narrow window
50
cannot be used as the President did not comply with the
requirements of Section 31.
D.3. The Authority of the President under the Faithful Execution
Clause
Article VII, Section 17 of the 1987 Constitution directs and authorizes
the President to faithfully execute the laws and the potency of this
power cannot be underestimated. Owing perhaps to the latitude
granted to the President under this constitutional provision, the
Solicitor General posited that the President’s power to create the
Truth Commission may be justified under this general grant of
authority. In particular, the Solicitor General argues that the
"President’s power to conduct investigations to aid him in ensuring
the faithful execution of laws – in this case, fundamental laws on
public accountability and transparency – is inherent in the President’s
powers as the Chief Executive." 105 The Solicitor General further
argues: "That the authority of the President to conduct investigations
and to create bodies to execute this power is not explicitly mentioned
in the Constitution or in statutes does not mean he is bereft of such
authority."106
That the President cannot, in the absence of any statutory
justification, refuse to execute the laws when called for is a principle
fully recognized by jurisprudence. In In re Neagle, the US Supreme
Court held that the faithful execution clause is "not limited to the
enforcement of acts of Congress according to their express
terms."107 According to Father Bernas, Neagle "saw as law that had to
be faithfully executed not just formal acts of the legislature but any
duty or obligation inferable from the Constitution or from statutes."108
Under his broad powers to execute the laws, the President can
undoubtedly create ad hoc bodies for purposes of investigating
reported crimes. The President, however, has to observe the limits
imposed on him by the constitutional plan: he must respect the
separation of powers and the independence of other bodies which
have their own constitutional and statutory mandates, as discussed
above. Contrary to what J. Antonio Eduardo B. Nachura claims in his
Dissent, the President cannot claim the right to create a public office
in the course of implementing the law, as this power lodged
exclusively in Congress. An investigating body, furthermore, must
operate within the Executive branch; the President cannot create an
office outside the Executive department.
These legal realities spawned the problems that the Solicitor General
created for himself when he made conflicting claims about the Truth
Commission during the oral arguments. For accuracy, the excerpts
from the oral arguments are best quoted verbatim.109
Associate Justice Nachura: Mr. Solicitor General, most of my
questions have actually been asked already and there are few things
that I would like to be clarified on. Well, following the questions asked
by Justice Carpio, I would like a clarification from you, a definite
answer, is the Truth Commission a public office?
Solicitor General Cadiz: No, Your Honor.
Associate Justice Nachura: Ah, you mean it is not a public office?
Solicitor General Cadiz: It is not a public office in the concept that it
has to be created by Congress, Your Honor.
Associate Justice Nachura: Oh, come on, I agree with you that the
President can create public offices, that was what, ah, one of the
questions I asked Congressman Lagman.
Solicitor General Cadiz: Thank you, your Honor.
Associate Justice Nachura: Because he was insisting that only
Congress could create public office although, he said, the President
can create public offices but only in the context of the authority
granted under the Administrative Code of 1987. So, it is a public
office?
Solicitor General Cadiz: Yes, Your Honor.
Associate Justice Nachura: This is definite, categorical. You are
certain now that Truth Commission (interrupted)
Solicitor General Cadiz: Yes, Your Honor, under the Office of the
President Proper, yes, Your Honor.
Associate Justice Nachura: Again?
Solicitor General Cadiz: That this Truth Commission is a public office,
Your Honor, created under the Office of the President.
Associate Justice Nachura: Okay, created under the Office of the
51
President, because it is the President who created it. And the
President can create offices only within the executive department. He
cannot create a public office outside of the executive department,
alright.
Solicitor General Cadiz: Yes, Your Honor.
Associate Justice Nachura: Okay. So, the Commissioners who are
appointed are what, Presidential Assistants? Are they Presidential
Assistants?
Solicitor General Cadiz: They are Commissioners, Your Honor.
Associate Justice Nachura: They are, therefore, alter-egos of the
President?
Solicitor General Cadiz: No, Your Honor. There is created a Truth
Commission, and Commissioners are appointed and it so stated here
that they are independent.
Associate Justice Nachura: Aha, okay.
Solicitor General Cadiz: Of the Office of the President.
Associate Justice Nachura: Are you saying now that the
Commissioners are not under the power and control of the President
of the Philippines?
Solicitor General Cadiz: It is so stated in the Executive Order, Your
Honor.
Associate Justice Nachura: Aha, alright. So, the Truth Commission is
not an office within the executive department, because it is not under
the power of control of the President, then, Section 17 of Article VII
would not apply to them, is that it?
Solicitor General Cadiz: Your Honor, the President has delineated his
power by creating an Executive Order which created the
Commission, which says, that this is an independent body, Your
Honor.
Associate Justice Nachura: Okay. So, what you are saying is, this is a
creation of the President, it is under the President’s power of control,
but the President has chosen not to exercise the power of control by
declaring that it shall be an independent body?
Solicitor General Cadiz: Yes, Your Honor.
Associate Justice Nachura: That is your position. I would like you to
place that in your memorandum and see. I would like to see how you
will develop that argument.
The Solicitor General, despite his promise to respond through his
Memorandum, never bothered to explain point-by-point his unusual
positions and conclusions during the oral arguments, responding only
with generalities that were not responsive or in point.110
Specifically, while admitting that the Truth Commission is a "creation"
of the President under his office pursuant to the latter’s authority
under the Administrative Code of 1987, the Solicitor General
incongruously claimed that the Commission is "independent" of the
Office of the President and is not under his control. Mercifully, J.
Nachura suggested that the President may have created a body
under his control but has chosen not to exercise the power of control
by declaring that it is an independent body, to which the Solicitor
General fully agreed.
Truth to tell (no pun intended), the Solicitor General appears under
these positions to be playing a game of smoke and mirrors with the
Court. For purposes of the creation of the Truth Commission, he
posits that the move is fully within the President’s authority and in the
performance of his executive functions. This claim, of course, must
necessarily be based on the premise that execution is by the
President himself or by people who are within the Executive
Department and within the President’s power of supervision and
control, as the President cannot delegate his powers beyond the
Executive Department. At the same time, he claims that the
Commissioners (whom he refuses to refer to as Presidential
Assistants or as alter egos of the President)111 are independent of the
President, apparently because the President has waived his power of
control over them.
All these necessarily lead to the question: can the President really
create an office within the Executive branch that is independent of his
control? The short answer is he cannot, and the short reason again is
the constitutional plan. The execution and implementation of the laws
have been placed by the Constitution on the shoulders of the
President and on none other.112 He cannot delegate his executive
52
powers to any person or entity outside the Executive department
except by authority of the Constitution or the law (which authority in
this case he does not have), nor can he delegate his authority to
undertake fact-finding as an incident of his executive power, and at
the same time take the position that he has no responsibility for the
fact-finding because it is independent of him and his office.
Under the constitutional plan, the creation of this kind of office with
this kind of independence is lodged only in the Legislature.113 For
example, it is only the Legislature which can create a body like the
National Labor Relations Commission whose decisions are final and
are neither appealable to the President nor to his alter ego, the
Secretary of Labor.114 Yet another example, President Corazon
Aquino herself, because the creation of an independent commission
was outside her executive powers, deemed it necessary to act
pursuant to a legislative fiat in constituting the first Davide
Commission of 1989.115
Apparently, the President wanted to create a separate, distinct and
independent Commission because he wants to continuously impress
upon the public – his audience in the second forum – that this
Commission can tell the "truth" without any control or prompting from
the Office of the President and without need of waiting for definitive
word from those constitutionally-assigned to undertake this task.
Here, truth-telling again rears its ugly head and is unmasked for what
it really is – an attempt to bypass the constitutional plan on how
crimes are investigated and resolved with finality.
Otherwise stated, if indeed the President can create the Commission
as a fact-finding or investigating body, the Commission must perforce
be an entity that is within the Executive branch and as such is subject
to the control and supervision of the President. In fact, the
circumstances surrounding the existence of the Commission –
already outlined above in terms of its processes, facilities, budget and
staff – cannot but lead to control. Likewise, if indeed the Truth
Commission is under the control of the President who issued the EO
with openly-admitted political motivation,116 then the Solicitor
General’s representation about the Commission’s independently-
arrived "truth" may fall under the classification of a smoke and mirror
political move. Sad to state, the Solicitor General chose to aim for the
best of all worlds in making representations about the creation and
the nature of the Commission. We cannot allow this approach to pass
unnoticed and without the observations it deserves.
If the President wants a truly independent Commission, then that
Commission must be created through an act of Congress;
otherwise, that independent Commission will be an
unconstitutional body. Note as added examples in this regard that
previous presidential fact-finding bodies, created either by Executive
or Administrative Orders (i.e., Feliciano, Melo, Zeñarosa and IIRC
Commissions), were all part of the Executive department and their
findings, even without any express representation in the orders
creating them, were necessarily subject to the power of the President
to review, alter, modify or revise according to the best judgment of the
President. That the President who received these commissions’
reports did not alter the recommendations made is not an argument
that the President can create an "independent" commission, as the
Presidents receiving the commissions’ reports could have, but simply
did not, choose to interfere with these past commissions’ findings.
In sum, this Court cannot and should not accept an arrangement
where: (1) the President creates an office pursuant to his
constitutional power to execute the laws and to his Administrative
Code powers to reorganize the Executive branch, and (2) at the same
time or thereafter allow the President to disavow any link with the
created body or its results through a claim of independence and
waiver of control. This arrangement bypasses and mocks the
constitutional plan on the separation of powers; among others, it
encroaches into Congress’ authority to create an office. This
consequence must necessarily be fatal for the arrangement is
inimical to the doctrine of separation of powers whose purpose,
according to Father Joaquin Bernas, is:
to prevent concentration of powers in one department and thereby to
avoid tyranny. But the price paid for the insurance against tyranny is
the risk of a degree of inefficiency and even the danger of gridlock.
As Justice Brandeis put it, "the doctrine of separation of powers was
adopted…not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was not to avoid friction, but, by means
of the inevitable friction incident to the distribution of governmental
powers among the three departments, to save the people from
autocracy."117
53
Indeed, to allow one department of government, without the authority
of law or the Constitution, to be granted the authority to bestow an
advanced imprimatur of "truth" bespeaks of a concentration of power
that may well overshadow any initiative to combat graft and
corruption; in its own way, this grant itself is an open invitation to the
very evils sought to be avoided.
E. VIOLATIONS OF THE RIGHTS OF INVESTIGATED PERSONS
E.1 Violation of Personal Rights
Separately from the above effects, truth-telling as envisioned under
the EO, carries prejudicial effects on the persons it immediately
targets, namely: the officials, employees and private individuals
alleged to have committed graft and corruption during the previous
administration. This consequence proceeds from the above
discussed truth-telling premise that –whether the Commission reports
(recommending the charging of specific individuals) are proven or not
in the appropriate courts – the Commission’s function of truth-telling
function would have been served and the Commission would have
effectively acted against the charged individuals.
The most obvious prejudicial effect of the truth-telling function on the
persons investigated is on their persons, reputation and property.
Simply being singled out as "charged" in a truth-telling report will
inevitably mean disturbance of one’s routines, activities and
relationships; the preparation for a defense that will cost money, time
and energy; changes in personal, job and business relationships with
others; and adverse effects on jobs and businesses. Worse,
reputations can forever be tarnished after one is labelled as a
participant in massive graft and corruption.
Conceivably, these prejudicial effects may be dismissed as
speculative arguments that are not justified by any supporting
evidence and, hence, cannot effectively be cited as factual basis for
the invalidity of the EO. Evidence, however, is hardly necessary
where the prejudicial effects are self-evident, i.e., given that the
announced and undisputed government position that truth-telling per
se, in the manner envisioned by the EO and its implementing rules, is
an independent objective the government wants to achieve. When
the government itself has been heard on the "truth," the probability of
prejudice for the individual charged is not only a likelihood; it
approaches the level of certainty.
In testing the validity of a government act or statute, such potential for
harm suffices to invalidate the challenged act; evidence of actual
harm is not necessary in the way it is necessary for a criminal
conviction or to justify an award for damages. In plainer terms, the
certainty of consequent damage requires no evidence or further
reasoning when the government itself declares that for as long as the
"story" of the allegedly massive graft and corruption during the past
administration is told, the Commission would have fulfilled one of its
functions to satisfaction; under this reckless approach, it is self-
evident that the mistaken object of the "truth" told must necessarily
suffer.
In the context of this effect, the government statement translates to
the message: forget the damage the persons investigated may suffer
on their persons and reputation; forget the rights they are entitled to
under the Constitution; give primacy to the story told. This kind of
message, of course, is unacceptable under a Constitution that
establishes the strongest safeguards, through the Bill of Rights, in
favor of the individual’s right to life, security and property against the
overwhelming might of the government.
E.2 Denial of the right to a fair criminal trial.
The essence of the due process guarantee in a criminal case, as
provided under Section 14(1) of the Constitution, is the right to a fair
trial. What is fair depends on compliance with the express guarantees
of the Constitution, and on the circumstances of each case.
When the Commission’s report itself is characterized, prior to trial,
and held out by the government to be the true story of the graft and
corruption charged, the chances of individuals to have a fair trial in a
subsequent criminal case cannot be very great.
Consider on this point that not even the main actors in the criminal
justice system – the Ombudsman, the Sandiganbayan and even this
Court – can avoid the cloud of "untruth" and a doubtful taint in their
54
integrity after the government has publicized the Commission’s
findings as the truth. If the rulings of these constitutional bodies
themselves can be suspect, individual defenses for sure cannot rise
any higher.
Where the government simply wants to tell its story, already labelled
as true, well ahead of any court proceedings, and judicial notice is
taken of the kind of publicity and the ferment in public opinion that
news of government scandals generate, it does not require a leap of
faith to conclude that an accused brought to court against
overwhelming public opinion starts his case with a less than equal
chance of acquittal. The presumption of innocence notwithstanding,
the playing field cannot but be uneven in a criminal trial when the
accused enters trial with a government-sponsored badge of guilt on
his forehead.118 The presumption of innocence in law cannot serve an
accused in a biased atmosphere pointing to guilt in fact because the
government and public opinion have spoken against the accused.
Viewed from the perspective of its cause, the prejudicial publicity, that
adversely affects the chances of an accused for a fair trial after the
EO has done its job, is not the kind that occurs solely because of the
identity of the individual accused. This prejudice results from a cause
systemic to the EO because of its truth-telling feature that allows the
government to call its proceedings and reports a process of truth-
telling where the tales cannot but be true. This kind of systemic
aberration has no place in the country’s dispensation of criminal
justice system and should be struck down as invalid before it can fully
work itself into the criminal justice system as an acceptable
intervention.
F. THE TRUTH COMMISSION AND THE EQUAL PROTECTION
CLAUSE
The guarantee of equal protection of the law is a branch of the right to
due process embodied in Article III, Section 1 of the Constitution. It is
rooted in the same concept of fairness that underlies the due process
clause. In its simplest sense, it requires equal treatment, i.e., the
absence of discrimination, for all those under the same situation. An
early case, People v. Cayat,119 articulated the requisites determinative
of valid and reasonable classification under the equal protection
clause, and stated that it must
 (1) rest on substantial distinctions;
(2) be germane to the purpose of the law;
(3) not be limited to existing conditions only; and
(4) apply equally to all members of the same class.
In our jurisdiction, we mainly decide equal protection challenges
using a "rational basis" test, coupled with a "deferential" scrutiny of
legislative classifications and a reluctance to invalidate a law unless
there is a showing of a clear and unequivocal breach of the
Constitution.120 Our views on the matter, however, have not remained
static, and have been attuned to the jurisprudential developments in
the United States on the levels of scrutiny that are applied to
determine the acceptability of any differences in treatment that may
result from the law. 121
Serrano v. Gallant Maritime Services, Inc.122 summarizes the three
tests employed in this jurisdiction as follows:
There are three levels of scrutiny at which the Court reviews the
constitutionality of a classification embodied in a law: a) the
deferential or rational basis scrutiny in which the challenged
classification needs only be shown to be rationally related to serving
a legitimate state interest; b) the middle-tier or intermediate scrutiny
in which the government must show that the challenged classification
serves an important state interest and that the classification is at least
substantially related to serving that interest; and c) strict judicial
scrutiny in which a legislative classification which impermissibly
interferes with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class is presumed
unconstitutional, and the burden is upon the government to prove that
the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such
interest. [Emphasis supplied]
The most exacting of the three tests is evidently the strict scrutiny
test, which requires the government to show that the challenged
classification serves a compelling state interest and that the
55
classification is necessary to serve that interest.123 Briefly stated, the
strict scrutiny test is applied when the challenged statute either:
(1) classifies on the basis of an inherently suspect
characteristic; or
(2) infringes fundamental constitutional rights.
In these situations, the usual presumption of constitutionality is
reversed, and it falls upon the government to demonstrate that its
classification has been narrowly tailored to further compelling
governmental interests; otherwise, the law shall be declared
unconstitutional for violating the equal protection clause.124
In EO 1, for the first time in Philippine history, the Executive created a
public office to address the "reports of graft and corruption of such
magnitude that shock and offend the moral and ethical sensibilities of
the people, committed….during the previous administration" through
fact-finding, policy formulation and truth-telling.125 While fact-finding
has been undertaken by previous investigative commissions for
purposes of possible prosecution and policy-formulation, a first for the
current Truth Commission is its task of truth-telling. The Commission
not only has to investigate reported graft and corruption; it also has
the authority to announce to the public the "truth" regarding alleged
graft and corruption committed during the previous administration.
EO 1’s problem with the equal protection clause lies in the truth-
telling function it gave the Truth Commission.
As extensively discussed earlier in this Opinion, truth-telling is not an
ordinary task, as the Commission’s reports to the government and the
public are already given the imprimatur of truth way before the
allegations of graft and corruption are ever proven in court. This
feature, by itself, is a unique differential treatment that cannot but be
considered in the application of the jurisprudential equal protection
clause requirements.
Equally unique is the focus of the Commission’s investigation - it
solely addresses alleged graft and corruption committed during the
past administration. This focus is further narrowed down to "third level
public officers and higher, their co-principal, accomplices and
accessories from the private sector, if any, during the previous
administration."126 Under these terms, the subject of the EO is limited
only to a very select group – the highest officials, not any ordinary
government official at the time. Notably excluded under these
express terms are third level and higher officials of other previous
administrations who can still be possibly be charged of similar levels
of graft and corruption they might have perpetrated during their
incumbency. Likewise excepted are the third level officials of the
present administration who may likewise commit the same level of
graft and corruption during the term of the Commission.
Thus, from the points of truth-telling and the focus on the people to be
investigated, at least a double layer of differential treatment
characterizes the Truth Commission’s investigation. Given these
disparate treatment, the equal protection question that arises is: does
the resulting classification and segregation of third level officials of
the previous administration and their differential treatment rest on
substantial distinctions? Stated more plainly, is there reasonable
basis to differentiate the officials of the previous administration, both
from the focus given to them in relation with all other officials as
pointed out above, and in the truth-telling treatment accorded to them
by the Commission?
Still a deeper question to be answered is: what level of scrutiny
should be given to the patent discrimination in focus and in treatment
that the EO abets? Although this question is stated last, it should
have been the initial consideration, as its determination governs the
level of scrutiny to be accorded; if the strict scrutiny test is
appropriate, the government, not the party questioning a
classification, carries the burden of showing that permissible
classification took place. This critical consideration partly accounts,
too, for the relegation to the last, among the EO’s cited grounds for
invalidity, of the equal protection clause violation; the applicable level
of scrutiny may depend on the prior determination of whether, as held
in Serrano, the disparate treatment is attended by infringement of
fundamental constitutional rights.
"Fundamental rights" whose infringement leads to strict scrutiny
under the equal protection clause are those basic liberties explicitly or
implicitly guaranteed in the Constitution. Justice Carpio-Morales,
56
although in dissent in Central Bank Employees Association, Inc. v.
Bangko Sentral ng Pilipinas,127 elaborated on this point when she
said:
Most fundamental rights cases decided in the United States require
equal protection analysis because these cases would involve a
review of statutes which classify persons and impose differing
restrictions on the ability of a certain class of persons to exercise a
fundamental right. Fundamental rights include only those basic
liberties explicitly or implicitly guaranteed by the U.S. Constitution.
And precisely because these statutes affect fundamental liberties,
any experiment involving basic freedoms which the legislature
conducts must be critically examined under the lens of Strict Scrutiny.
Fundamental rights which give rise to Strict Scrutiny include the right
of procreation, the right to marry, the right to exercise First
Amendment freedoms such as free speech, political expression,
press, assembly, and so forth, the right to travel, and the right to vote.
[Emphasis supplied]
In the present case, as shown by the previously cited grounds for the
EO’s invalidity, EO No. 1 infringes the personal due process rights of
the investigated persons, as well as their constitutional right to a fair
trial. Indisputably, both these rights – one of them guaranteed under
Section 1, Article III, and under Section 14 of the same Article – are,
by jurisprudential definition, fundamental rights. With these
infringements, the question now thus shifts to the application of the
strict scrutiny test – an exercise not novel in this jurisdiction.
In the above-cited Central Bank Employees Association, Inc.
case,128 we stated:
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition and
respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification
violates a fundamental right, or prejudices persons accorded
special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not
suffice.
xxx
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against
persons favored by the Constitution with special
protection, judicial scrutiny ought to be more strict. A weak and
watered down view would call for the abdication of this Court’s
solemn duty to strike down any law repugnant to the Constitution and
the rights it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or one
of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor. [Underscoring
supplied]
Stripped of the usual deference accorded to it, the government must
show that a compelling state interest exists to justify the differential
treatment that EO 1 fosters.
Serrano v. Gallant Maritime Services, Inc.129 helpfully tells us the
compelling state interest that is critical in a strict scrutiny examination:
What constitutes compelling state interest is measured by the scale
of rights and powers arrayed in the Constitution and calibrated by
history. It is akin to the paramount interest of the state for which some
individual liberties must give way, such as the public interest in
safeguarding health or maintaining medical standards, or in
maintaining access to information on matters of public concern.
In this same cited case, the Court categorically ruled that "the burden
is upon the government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least
restrictive means to protect such interest."130
On its face, the compelling state interest the EO cites is the "urgent
call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to
them by the filing of the appropriate cases against those involved if
57
warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public
servants."131 Under these terms, what appears important to the
government as means or mediums in its fight against graft and
corruption are (1) to expose the graft and corruption the past
administration committed; (2) to prosecute the malefactors, if
possible; and (3) to set an example for others. Whether a compelling
State interest exists can best be tested through the prism of the
means the government has opted to utilize.
In the usual course and irrespective of who the malefactors are and
when they committed their transgressions, grafters and corruptors
ought to be prosecuted. This is not only a goal but a duty of
government. Thus, by itself, the prosecution that the EO envisions is
not any different from all other actions the government undertakes
day to day under the criminal justice system in proceeding against the
grafters and the corrupt. In other words, expressed as a duty, the
compelling drive to prosecute must be the same irrespective of the
administration under which the graft and corruption were perpetrated.
If indeed this is so, what compelling reasons can there be to drive the
government to use the EO and its unusual terms in proceeding
against the officials of the previous administration?
If the EO’s terms are to be the yardstick, the basis for the separate
focus is the "extent and magnitude" of the reported graft and
corruption which "shock and offend the moral and ethical sensibilities
of the people." What this "extent and magnitude" is or what specific
incidents of massive graft are referred to, however, have been left
vague. Likewise, no explanation has been given on why special
measures – i.e., the special focus on the targeted officials, the
creation of a new office, and the grant of truth-telling authority – have
been taken.
Effectively, by acting as he did, the President simply gave the
Commission the license to an open hunting season to tell the "truth"
against the previous administration; the Commission can investigate
an alleged single billion-peso scam, as well as transactions during the
past administration that, collectively, may reach the same amount.
Only the Commission, in its wisdom, is to judge what allegations or
reports of graft and corruption to cover for as long as these were
during the past administration. In the absence of any specific guiding
principle or directive, indicative of its rationale, the conclusion is
unavoidable that the EO carries no special compelling reason to
single out officials of the previous administration; what is important is
that the graft be attributed to the previous administration. In other
words, the real reason for the EO’s focus lies elsewhere, not
necessarily in the nature or extent of the matters to be investigated.
If, as strongly hinted by the Solicitor General, dissatisfaction exists
regarding the Ombudsman’s zeal, efforts, results, and lack of
impartiality, these concerns should be addressed through the
remedies provided under the Constitution and the laws, not by
bypassing the established remedies under these instruments.
Certainly, the remedy is not through the creation of new public office
without the authority of Congress.
Every successful prosecution of a graft and corruption violation ought
to be an opportunity to set an example and to send a message to the
public that the government seriously intends to discharge its duties
and responsibilities in the area of graft and corruption. To be sure, the
conviction of a third level officer is a high profile accomplishment that
the government can and should announce to all as evidence of its
efforts and of the lesson that the conviction conveys. This
government’s accomplishment, however, does not need to be against
an official or officials of the previous administration in order to be a
lesson; it can be any third level or higher official from any
administration, including the present. In fact, the present
administration’s serious intent in fighting graft may all the more
be highlighted if it will also proceed against its own people.
It is noteworthy that the terms of the EO itself do not provide any
specific reason why, for purposes of conveying a message against
graft and corruption, the focus should be on officials of the previous
administration under the EO’s special truth-telling terms. As
mentioned above, the extent of the alleged graft and corruption
during the previous administration does not appear to be a sufficient
reason for distinction under the EO’s vague terms. Additionally, if a
lesson for the public is really intended, the government already has
similar successful prosecutions to its credit and can have many more
graphic examples to draw from; it does not need to be driven to
unusual means to show the graft and corruption committed under the
previous administration. The host of examples and methodologies
58
already available to the government only demonstrate that the focus
on, and differential treatment of, specific officials for public lesson
purposes involves a classification unsupported by any special
overriding reason.
Given the lack of sufficiently compelling reasons to use two (2) of the
three (3) objectives or interests the government cited in EO 1, what is
left of these expressed interests is simply the desire to expose the
graft and corruption the previous administration might have
committed. Interestingly, the EO itself partly provides the guiding
spirit that might have moved the Executive to its intended expose as
it unabashedly points to the President’s promise made in the last
election – "Kung walang corrupt, walang mahirap."132 There, too, is
the Solicitor General’s very calculated statement that truth-telling is
an end in itself that the EO wishes to achieve.
Juxtaposing these overt indicators with the EO’s singleness of focus
on the previous administration, what emerges in bold relief is the
conclusion that the EO was issued largely for political ends: the
President wants his election promise fulfilled in a dramatic and
unforgettable way; none could be more so than criminal convictions,
or at least, exposure of the "truth" that would forever mark his political
opponents; thus, the focus on the previous administration and the
stress on establishing their corrupt ways as the "truth."
Viewed in these lights, the political motivation behind the EO
becomes inescapable. Political considerations, of course, cannot be
considered a legitimate state purpose as basis for proper
classification.133 They may be specially compelling but only for the
point of view of a political party or interest, not from the point of view
of an equality-sensitive State.
In sum, no sufficient and compelling state interest appears to be
served by the EO to justify the differential treatment of the past
administration’s officials. In fact, exposure of the sins of the previous
administration through truth-telling should not even be viewed as
"least restrictive" as it is in fact a means with pernicious effects on
government and on third parties.
For these reasons, the conclusion that the EO violates the equal
protection clause is unavoidable.
G. A FEW LAST WORDS
Our ruling in this case should not in any way detract from the concept
that the Judiciary is the least dangerous branch of government. The
Judiciary has no direct control over policy nor over the national purse,
in the way that the Legislature does. Neither does it implement laws
nor exercise power over those who can enforce laws and national
policy. All that it has is the power to safeguard the Constitution in a
manner independent of the two other branches of government. Ours
is merely the power to check and ensure that constitutional powers
and guarantees are observed, and constitutional limits are not
violated.
Under this constitutional arrangement, the Judiciary offers the least
threat to the people and their rights, and the least threat, too, to the
two other branches of government. If we rule against the other two
branches of government at all in cases properly brought before us,
we do so only to exercise our sworn duty under the Constitution. We
do not prevent the two other branches from undertaking their
respective constitutional roles; we merely confine them to the limits
set by the Constitution.
This is how we view our present action in declaring the invalidity of
EO 1. We do not thereby impugn the nobility of the Executive’s
objective of fighting graft and corruption. We simply tell the Executive
to secure this objective within the means and manner the Constitution
ordains, perhaps in a way that would enable us to fully support the
Executive.
To be sure, no cause exists to even impliedly use the term "imperial
judiciary" 134 in characterizing our action in this case.
This Court, by constitutional design and for good reasons, is not an
elective body and, as already stated above, has neither reason nor
occasion to delve into politics – the realm already occupied by the
two other branches of government. It cannot exercise any
ascendancy over the two other branches of government as it is, in
59
fact, dependent on these two branches in many ways, most
particularly for its budget, for the laws and policies that are the main
subjects for its interpretation, and for the enforcement of its decisions.
While it has the power to interpret the Constitution, the Judiciary
itself, however, is subject to the same Constitution and, for this
reason, must in fact be very careful and zealous in ensuring that it
respects the very instrument it is sworn to safeguard. We are aware,
too, that we "cannot be the repository of all remedies"135 and cannot
presume that we can cure all the ills of society through the powers
the Constitution extended to us. Thus, this Court – by its nature and
functions – cannot be in any way be "imperial," nor has it any
intention to be so. Otherwise, we ourselves shall violate the very
instrument we are sworn to uphold.
As evident in the way this Court resolved the present case, it had no
way but to declare EO invalid for the many reasons set forth above.
The cited grounds are neither flimsy nor contrived; they rest on solid
legal bases. Unfortunately, no other approach exists in constitutional
interpretation except to construe the assailed governmental
issuances in their best possible lights or to reflect these effects in a
creative way where these approaches are at all possible. Even
construction in the best lights or a creative interpretation, however,
cannot be done where the cited grounds are major, grave and affect
the very core of the contested issuance – the situation we have in the
present case.
Nor can this Court be too active or creative in advocating a position
for or against a cause without risking its integrity in the performance
of its role as the middle man with the authority to decide disputed
constitutional issues. The better (and safer) course for democracy is
to have a Court that holds on to traditional values, departing from
these values only when these values have become inconsistent with
the spirit and intent of the Constitution.
In the present case, as should be evident in reading the ponencia and
this Separate Opinion, we have closely adhered to traditional lines. If
this can be called activism at all, we have been an activist for
tradition. Thereby, we invalidated the act of the Executive without
however foreclosing or jeopardizing his opportunity to work for the
same objective in some future, more legally reasoned, and better
framed course of action.
ARTURO D. BRION 6
EO 1, Section 1, par. 2.
Associate Justice
7
Id., Section 2, paragraphs. H and I; Sections 3, 4 and 5.

8
Id., Sections 12, 13.

Footnotes 9
Id., Section 11.

1
Constitution, Article III, Section 1 and 14, which states: 10
Id., Section 2 (b).

Section 1. No person shall be deprived of life, liberty, 11

Id., Sections 2 (c), (d), (e), (f), (g), (h), (i) and 6.
or property without due process of law, nor shall any
person be denied the equal protection of the laws. 12
Id., Section 6.

Section 14. (1) No person shall be held to answer for 13

Id., Section 2.
a criminal offense without due process of law.
14
Id., Section 15.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and 15
Id., Section 7.
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the 16
Id., Section 8.
accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the Resolution 001, "Rules of Procedure of the Philippine Truth
17

attendance of witnesses and the production of Commission," September 20, 2010.

evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the
18
Rules, Rule 4, Section 1(b).
accused: Provided, that he has been duly notified and
his failure to appear is unjustifiable. 19
Id., Rule 4, Section 1(b), paragraph 2.

2
Executive Order No. 1, "Creating the Philippine Truth 20
Rules, Rule 4, Section 2.
Commission of 2010," Section 1.
21
EO 1, Section 8.
3
TSN, September 28, 2010, pp. 23, 39-40, 52, 60, 73-75,
123-126. 22
Rules, Rule 5.

4
Id. at 182. Petitioner Lagman’s Petition for Certiorari, rollo, pp. 34-43;
23

Respondents’ Memorandum, id. at 322-323.

5
Id. at 58-60.

60
24
See Mark Freeman, Truth Commissions and Procedural
Fairness (2006).
Freeman, supra note 24 at 12-13 citing Priscilla Hayner,
25
Unspeakable Truths: Facing the Challenge of Truth
Commissions (2nd ed., 2004), p. 14.
26
Freeman, supra note 24 at 14 [Freeman points out that
Hayner omitted the element in the definition that "truth
commissions focus on severe acts of violence or repression."
He stated further that "[s]uch acts may take many forms,
ranging from arbitrary detention to torture to enforced
disappearance to summary execution."
27
Theresa Klosterman, The Feasibility and Propriety of a
Truth Commission in Cambodia: Too Little? Too Late? 15
Ariz. J. Int'l & Comp. L. 833, 843-844 (1998). See also
Priscilla Hayner, Fifteen Truth Commissions 1974 to 1994: A
Comparative Study, 16 HUM. RTS. Q. 597, 600, 607 (1994).
28
An attempt has been made during the oral arguments to
characterize massive graft and corruption as a violation of
human rights, but this characterization does not appear to be
based on the settled definition of human rights (TSN, Sept. 7,
2010, p. 83-84).
29
See Villanueva v. CA, G.R. No. 110921, January 28, 1998,
285 SCRA 180; Fabia v. IAC, G.R. No. L-66101 November
21, 1984, 133 SCRA 364; Lacoste v. Hernandez, G.R. No. L-
63796-97, May 21, 1984, 129 SCRA 373; Lu v. Yorkshire
Insurance, 43 Phil. 633 (1922); People v. Macasinag, G.R.
No. L-18779, August 18, 1922, 43 Phil. 674 (1922); Correa v.
Mateo, 55 Phil. 79 (1930); People v. Macasinag, 43 Phil. 674
(1922).
30
See Joaquin G. Bernas, S.J. The 1987 Constitution Of The
Republic Of The Philippines: A Commentary (2009 ed.), p.
118.
61
See Id. at 119, citing U.S. v. Toribio, 15 Phil. 85 (1910),
31
which quoted Lawton v. Steel:
[T]he State may interfere wherever the public interests
demand it, and in this particular a large discretion is
necessarily vested in the legislature to determine, not
only what the interests of the public require, but what
measures are necessary for the protection of such
interests. (Barbier vs. Connolly, 113 U.S. 27; Kidd vs.
Pearson, 128 U.S. 1.) To justify the State in thus
interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally,
as distinguished from those of a particular class,
require such interference; and, second, that the
means are reasonably necessary for the
accomplishment of the purpose, and not unduly
oppressive upon individuals. The legislature may not,
under the guise of protecting the public interests,
arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful
occupations. In other words, its determination as to
what is a proper exercise of its police powers is not
final or conclusive, but is subject to the supervision of
the court.
32
Republic Act No. 6770, Section 15, par.1, November 17,
1989, "An Act Providing For the Functional and Structural
Organization of the Office of the Ombudsman, and For Other
Purposes," See also Ombudsman v. Enoc, G.R. Nos.
145957-68, January 25, 2002, 374 SCRA 691. See also
Ombudsman v. Breva, G.R. No. 145938, February 10, 2006,
482 SCRA 182.
33
Presidential Decree No. 1606, December 10, 1978,
"Revising Presidential Decree No. 1486, Creating a Special
Court to be known as Sandiganbayan and for other
purposes," as amended by Republic Act No. 8249, February
5, 1997, "An Act Further Defining the Jurisdiction of the
Sandiganbayan, Amending For The Purpose Presidential
Decree No. 1606, As Amended, Providing Funds Therefor,
And For Other Purposes." See also PCGG v. Hon. Emmanuel
G. Peña, etc., et al., G.R. No. L-77663, April 12, 1988, 159
SCRA 556.
34
Id. at 561-562, citing Presidential Decree No. 1606, Section
7, which provides that "decisions and final orders [of the
Sandiganbayan] shall be subject of review on certiorari by the
Supreme Court in accordance with Rule 45 of the Rules of
Court."
35
TSN, September 28, 2010, pp. 58–60, 147.
36
The Dissent of J. Sereno itself echoes and reechoes with
the truth-telling intent of the Truth Commission and even
speaks of "the need to shape collective memory as a way for
the public to confront injustice and move towards a more just
society" (p. 27, dissent). It proceeds to claim that this
Separate Opinion "eliminates the vital role of the Filipino
people in constructing collective memories of injustices as
basis for redress." J. Sereno’s Dissenting Opinion, pp. 27-28.
37
TSN, September 28, 2010, pp. 146 – 147.
See e.g. Bilbija, et al., eds., The Art of Truth Telling About
38
Authoritarian Rule (2005), p. 14.
39
Constitution, Article XI, Sections 12 and 13.
40
Supra note 35.
46
TSN, September 28, 2010, pp. 149-151.
47
The Commission is bound to furnish the Ombudsman a
copy of its partial and final reports for the Ombudsman’s
consideration and action, under Sec. 2 of the EO.
48
EO 1, Section 16.
49
See generally Malcolm Gladwell, Blink (2005); see also,
Cardozo, The Nature of the Judicial Process, pp. 167-180,
and as quoted elsewhere in this Separate Opinion, infra note
55.
50
J. Carpio’s Dissenting Opinion, pp. 19-211.
51
J. Sereno’s Dissenting Opinion, pp. 25- 29.
52
TSN, September 28, 2010, p. 59.
53
See Gladwell, supra note 49, pp. 49-73.
54
Born May 24, 1870, New York; died July 9, 1938, Port
Chester, NY. US Supreme Court – 1932-1938. He was also a
Judge of NY Court of Appeals from 1914 to 1932, and was its
Chief Judge in the last 6 years of his term with the Court of
Appeals.
See http://www.courts.state.ny.us/history/cardozo.htm [last
visited December 2, 2010].

41
See Freeman, supra note 24, pp. 88-155. 55
Benjamin N. Cardozo, The Nature of the Judicial Process,
(1921).
42
See Freeman, id. at 88.
56
Id. at 175-176.
43
Constitution, Article III, Section 14 (2), supra note 1.
57
According to a recent SWS Survey conducted from October
44
Constitution, Article III, Section 17. 20-29, 2010 http://www.mb.com.ph/articles/287833/80-
filipinos-still-trust-aquino-despite-ratings-dip [last visited
45
Constitution, Article III, Section 12. November 17, 2010].

62
 Supra note 55, pp. 178-179, citing Foreign Corporations in
58 71
Id., Article VIII, Section 6.
American Constitutional Law, p. 164 cf. Powell "The
Changing Law of Foreign Corporations," 33 Pol. Science Revised Administrative Code, Chapter I, Title III, Book IV.
72

Quarterly, p. 569. See also Honasan II v. Panel of Investigators, supra note 66.

59
Rules, Rule 4, Section 2. 73
Ibid. See Section 15, par. 1, Republic Act No. 6770.
60
Constitution, Article VIII, Section 2. See also Bernas, supra 74
For officials in Salary Grade 27 and beyond.
note 30, p. 959.
75
Constitution, Article III, Section 7.
61
Id., Article VIII, Section 7 (2).
76
Id., Article III, Section 4.
62
People v. Maceren, G.R. No. L-32166 October 18, 1977, 79
SCRA 450, 461 citing 1 Am. Jur. 2nd, sec. 127, p. 938; Texas 77
Honasan II v. Panel of Investigators, supra note 66.
Co. v. Montgomery, 73 F. Supp. 527: It has been held that "to
declare what shall constitute a crime and how it shall be
See Honasan II v. Panel of Investigators, supra note 66.
78
punished is a power vested exclusively in the legislature, and
See also Rules of Court, Rule 112, Sections 2 and 4.
it may not be delegated to any other body or agency."
79
Revised Administrative Code, Chapter 9 (D), Title II, Book
63
Constitution, Article VIII, Section 5.
III.
64
Constitution, Article VIII, Section 8. 80
Black’s Law Dictionary (5th ed., 1979), p. 330.
65
Revised Administrative Code, Book II, Chapter II, Section 81
Buklod ng Kawaning EIIB v. Executive Secretary, G.R. Nos.
22.
142801-802, July 10, 2001, 360 SCRA 718, 726, citing
Isagani Cruz, The Law on Public Officers (1999 ed.), p. 4.
Honasan II v. The Panel of Investigating Prosecutors of the
66

Department of Justice, G.R. No. 159747, April 13, 2004, 427 82

EO 1, Section 1.
SCRA 46. See also Ombudsman v. Enoc, supra note 32.
83
EO 1, Sections 3 and 5.
67
See Batas Pambansa Blg. 129, "An Act Reorganizing the
Judiciary, Appropriating Funds Therefor, and For Other
Purposes."
84
EO 1, Section 1.

68
Republic Act No. 8249, supra note 33, Section 4.
85
TSN, September 28, 2010, p. 166.

69
Constitution, Article VIII, Section 5 (5).
86
See http://www.gmanews.tv/story/201465/full-text-iirc-
report-on-august-23-2010-rizal-park-hostage-taking-incident,
[last visited November 17, 2010].
70
Id., Article VIII, Section 5 (6).

63
87
See Jonathan Horowitz, Racial (Re) Construction: The Aquino v. COMELEC, No. L-40004, January 31, 1975, 62
98

Case of the South African Truth and Reconciliation SCRA 275.

Commission, 17 Nat'l Black L.J. 67 (2003); Evelyn Bradley, In
Search for Justice – A Truth and Reconciliation Commission 99
Gonzales v. PAGCOR, G. R. No. 144891, May 27, 2004,
for Rwanda, 7 J. Int'l L. & Prac. 129 (1998). 429 SCRA 533,545.
88
See Catherine O’Rourke, The Shifting Signifier of 100
G.R. No. 166620, April 20, 2010.
"Community in Transitional Justice: A Feminist Analysis¸ 23
Wis. J.L. Gender & Soc'y 269 (2008) citing Transitional 101
Supra note 96.
Justice and Rule of Law Interest Group, American Society of
International Law, Statement of Purpose, 102
Supra note 81.
http://www.asil.org/interest-groups-view.cfm?groupid=32.
103
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
89
Isagani Cruz, Philippine Political Law (1998 ed.) p. 79. See
also Bernas, supra note 30, pp. 676-677, stating: "Thus, any
power, deemed to be legislative by usage and tradition, is
104
J. Carpio’s Separate Concurring Opinion. Supra note 100.
necessarily possessed by Congress."
105
Solicitor General’s Consolidated Comment, rollo, p. 160.
90
Ibid. See also Canonizado v. Aguirre, G.R. No. 133132,
January 25, 2000, 323 SCRA 312; Buklod ng Kawaning EIIB
106
Id. at 41.
v. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA
718. 107
135 U.S. 1, 59 (1890).

91
Bernas, supra note 30, p. 678. 108
Bernas, supra note 30, p. 895.

92
EO 1, 8th and last Whereas Clause. 109
TSN, September 28, 2010, pp. 209-214.

93
Buklod ng Kawaning EIIB v. Hon. Executive Secretary, 110
Part of the argument the Solicitor General relied upon was
supra note 81. Department of Health v. Campasano, (G.R. No. 157684. April
27, 2005, 457 SCRA 438) Solicitor General’s Consolidated
94
Solicitor General’s Memorandum, rollo, p. 332. Comment, rollo, pp. 145-146. Reliance on this case, however,
is misplaced. In Campasano, the Court upheld the power of
95
Id. at 324. the President to create an ad hoc investigating committee in
the Department of Health on the basis of the President’s
constitutional power of control over the Executive Department
96
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
as well as his obligation under the faithful execution clause to
ensure that all executive officials and employees faithfully
97
Solicitor General’s Consolidated Comment, rollo, pp. 148- comply with the law. The Court’s ruling in Campasano is not
149. determinative of the present case as the Truth Commission is
claimed to be a body entirely distinct and independent from

64
the Office of the President. This conclusion is bolstered by the
Solicitor General’s own admission during oral arguments that
the Truth Commission, particularly the Commissioners are not
under the power of control by the President. In fact, the
Solicitor General went as far as to admit that the President
has in fact relinquished the power of control over the
Commission to underscore its independence.
111
TSN, September 28, 2010, p. 214.
112
Constitution, Article VII, Section 1: ‘The Executive Power
shall be vested in the President of the Philippines." See
Bernas, supra note 30, p. 820: "With the 1987 Constitution,
the constitutional system returns to the presidential model of
the 1935 Constitution: executive power is vested in the
President." Father Bernas further states: "In vesting executive
power in one person rather than in a plural executive, the
evident intention was to invest the power holder with energy."
113
Constitution, Article VI, Section 1: "The legislative power
shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on
initiative and referendum." See Vera v. Avelino, 77 Phil. 192,
212 (1946): "any power, deemed to be legislative by usage
and tradition, is necessarily possessed by Congress x x x"
cited in Bernas, supra note 30, pp. 676-677.
114
Even in the case of the NLRC, however, presidential
control cannot be avoided as the NLRC is part of the
Executive branch and the President, through his Secretary of
Labor, sets the policies on labor and employment (expressed
through rules and regulations and interpretation) that,
consistent with the existing laws and jurisprudence, must be
followed.
115
Republic Act 6832, otherwise known as "An Act Creating A
Commission To Conduct A Thorough Fact-Finding
Investigation Of The Failed Coup D′État Of December 1989,
Recommend Measures To Prevent The Occurrence Of
65
Similar Attempts At A Violent Seizure Of Power, And For
Other Purposes." Its Section 1 provides:
Section 1. Creation, Objectives and Powers. — There
is hereby created an independent
Commissionwhich shall investigate all the facts and
circumstances of the failed coup d'état of December
1989, and recommend measures to prevent similar
attempts at a violent seizure of power. [Emphasis
supplied]
116
See 6th Whereas Clause, EO 1.
117
Bernas, supra note 30, p. 678.
118
See e.g. Allenet de Ribemont v. France, February 10,
1995, 15175/89 [1995] ECHR 5, where the European Court of
Human Rights held that the right to presumption of innocence
may be "infringed not only by a judge or court but also by
other public authorities." The ECHR likewise held:
The presumption of innocence enshrined in paragraph
2 of Article 6 (art. 6-2) is one of the elements of the
fair criminal trial that is required by paragraph 1 (art.
6-1) (see, among other authorities, the Deweer v.
Belgium judgment, of 27 February 1980, Series A no.
35, p. 30, para. 56, and the Minelli judgment
previously cited, p. 15, para. 27). It will be violated if a
judicial decision concerning a person charged with a
criminal offence reflects an opinion that he is guilty
before he has been proved guilty according to law. It
suffices, even in the absence of any formal finding,
that there is some reasoning suggesting that the court
regards the accused as guilty (see the Minelli
judgment previously cited, p. 18, para. 37). [emphasis
supplied]
119
68 Phil. 12 (1939).
 Central Bank Employees Association, Inc. v. Bangko
120
na mga Manananggol ng mga Manggagawang Pilipino, Inc.,
Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 211,
446 SCRA 299, 370. where former Chief Justice Puno spoke of an "imperial
judiciary," viz:
121
See Central Bank Employees Association, Inc. v. Bangko
Sental ng Pilipinas, id., where the Court expanded the The 1987 Constitution expanded the parameters of
concept of suspect classification; See also Serrano v. Gallant judicial power, but that by no means is a justification
Maritime Services, Inc., infra where the Court applied the for the errant thought that the Constitution created an
strict scrutiny test. imperial judiciary. An imperial judiciary composed of
the unelected, whose sole constituency is the
G.R. No. 167614, March 24 2009, 582 SCRA 254, 277-
122 blindfolded lady without the right to vote, is counter-
278. majoritarian, hence, inherently inimical to the central
ideal of democracy. We cannot pretend to be an
123
Supra note 30, pp. 139-140. imperial judiciary for in a government whose
cornerstone rests on the doctrine of separation of
powers, we cannot be the repository of all remedies.
J. Carpio-Morales’ Dissenting Opinion. Supra note 120, p.
124

485. 135
Ibid.
125
See Item I (c) of this Concurring Opinion, p. 8.

126
EO 1, Section 2. The Lawphil Project - Arellano Law Foundation

127
Supra note 120, pp. 495-496.

128
Id. at 387, 390.
SEPARATE OPINION
129
Supra note 120, p. 296.
BERSAMIN, J.:
Id. at 278 citing Grutter v. Bollinger,539 US 306 (2003);
130

Bernal v. Fainter, 467 US 216 (1984). I register my full concurrence with the Majority’s well reasoned
conclusion to strike down Executive Order No. 1 (E.O. No. 1) for its
131
EO 1, 5th Whereas Clause. incurable unconstitutionality.

132
EO 1, 6th Whereas Clause. I share and adopt the perspectives of my colleagues in the Majority
on why the issuance has to be struck down. I render this Separate
Opinion only to express some thoughts on a few matters.
133
Carbonaro v. Reeher, 392 F. Supp. 753 (E.D. Pa. 1975).
I
See then Associate Justice Reynato S. Puno’s Concurring
134
Locus Standi of Petitioners
and Dissenting Opinion in Francisco, Jr. v. Nagmamalasakit

66
I hold that the petitioners have locus standi.
In particular reference to the petitioners in G.R. No. 193036, I think
that their being incumbent Members of the House of Representatives
gave them the requisite legal standing to challenge E. O. No. 1 as an
impermissible intrusion of the Executive into the domain of the
Legislature. Indeed, to the extent that the powers of Congress are
impaired, so is the power of each Member, whose office confers a
right to participate in the exercise of the powers of that institution;
consequently, an act of the Executive that injures the institution of
Congress causes a derivative but nonetheless substantial injury that
a Member of Congress can assail.1 Moreover, any intrusion of one
Department in the domain of another Department diminishes the
enduring idea underlying the incorporation in the Fundamental Law of
the time-honored republican concept of separation of powers.
Justice Mendoza’s main opinion, which well explains why the
petitioners have locus standi, is congruent with my view on the matter
that I expressed in De Castro v. Judicial and Bar Council, et al.,2 viz:
Black defines locus standi as "a right of appearance in a court of
justice on a given question." 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.:
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." 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
67
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.
It is true that as early as in 1937, in People v. Vera, 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, Manila Race Horse Trainers’ Association v.
De la Fuente, Anti-Chinese League of the Philippines v.
Felix, and Pascual v. Secretary of Public Works.
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, 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.
In the 1975 decision in Aquino v. Commission on Elections, 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.
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, 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, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s
suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel
Case v. Collins: "In matter of mere public right, however…the people
are the real parties…It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect
to taxpayer’s suits, Terr v. Jordan 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."
xxx
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.
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., 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
68
Court to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised."
II
The President Has No Power to Create A Public Office
A public office may be created only through any of the following
modes, namely: (a) by the Constitution; or (b) by statute enacted by
Congress; or (c) by authority of law (through a valid delegation of
power).3
The power to create a public office is essentially legislative, and,
therefore, it belongs to Congress. It is not shared by Congress with
the President, until and unless Congress enacts legislation that
delegates a part of the power to the President, or any other officer or
agency.
Yet, the Solicitor General contends that the legal basis for the
President’s creation of the Truth Commission through E. O. No. 1 is
Section 31, Chapter 10, Book III, of the Administrative Code of 1987.
Section 31, Chapter 10, Book III, of the Administrative Code of 1987,
which reads:
Section 31. Continuing Authority of the President to Reorganize his
Office. – The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
1. Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System, by
abolishing, consolidating or merging units thereof or
transferring functions from one unit to another;
2. Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
 to the Office of the President from other Departments and
Agencies; and
3. Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments or
agencies.
nowhere refers to the creation of a public office by the President. On
the contrary, only a little effort is needed to know from reading the
text of the provision that what has been granted is limited to an
authority for reorganization through any of the modes expressly
mentioned in the provision.
The Truth Commission has not existed before E. O. No. 1 gave it life
on July 30, 2010. Without a doubt, it is a new office, something we
come to know from the plain words of Section 1 of E. O. No. 1 itself,
to wit:
Section 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION", which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
If the Truth Commission is an entirely new office, then it is not the
result of any reorganization undertaken pursuant to Section 31,
Chapter 10, Book III, of the Administrative Code of 1987. Thus, the
contention of the Solicitor General is absolutely unwarranted.
69
Neither may the creation of the Truth Commission be made to rest for
its validity on the fact that the Constitution, through its Section 17,
Article VII, invests the President with the duty to ensure that the laws
are faithfully executed. In my view, the duty of faithful execution of the
laws necessarily presumes the prior existence of a law or rule to
execute on the part of the President. But, here, there is no law or rule
that the President has based his issuance of E. O. No. 1.
I cannot also bring myself to accept the notion that the creation of the
Truth Commission is traceable to the President’s power of control
over the Executive Department. It is already settled that the
President’s power of control can only mean "the power of an officer to
alter, modify, or set aside what a subordinate officer had done in the
performance of his duties, and to substitute the judgment of the
former for that of the latter."4 As such, the creation by the President of
a public office like the Truth Commission, without either a provision of
the Constitution or a proper law enacted by
Congress authorizing such creation, is not an act that the power of
control includes.
III
Truth Commission Replicates and Usurps the
Duties and Functions of the
Office of the Ombudsman
I find that the Truth Commission replicates and usurps the duties and
functions of the Office of the Ombudsman. Hence, the Truth
Commission is superfluous and may erode the public trust and
confidence in the Office of the Ombudsman.
The Office of the Ombudsman is a constitutionally-created quasi-
judicial body established to investigate and prosecute illegal acts and
omissions of those who serve in the Government. Section 5, Article
XI of the 1987 Constitution enumerates the powers, functions, and
duties of the Office of the Ombudsman, including the power to:
(1) Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.
 xxx
(5) Request any government agency for assistance and information
necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents.
xxx
(7) Determine the causes of inefficiency, red tape, mismanagement,
fraud, and corruption in the Government and make recommendations
for their elimination and the observance of high standards of ethics
and efficiency.
The Framers of the Constitution, particularly those of them who
composed the Committee on Accountability of Public Officers,
intended the Office of the Ombudsman to be strong and effective, in
order to enable the Office of the Ombudsman to carry out its mandate
as the Protector of the People against the inept, abusive, and corrupt
in the Government. This intent is clear from the proceedings on the
establishment of the Office of the Ombudsman, as follows:
SPONSORSHIP SPEECH OF COMMISSIONER MONSOD
MR. MONSOD. Madam President, the Committee on Accountability
of Public Officers is respectfully submitting its proposed Article in the
Constitution, and we would just want to make a few remarks on the
articles and sections that we have included.
xxx
With respect to the Sandiganbayan and the Tanodbayan, the
Committee decided to make a distinction between the purely
prosecutory function of the Tanodbayan and the function of a pure
Ombudsman who will use the prestige and persuasive powers of his
office. To call the attention of government officials to any impropriety,
misconduct or injustice, we conceive the Ombudsman as a champion
of the citizens x x x The concept of the Ombudsman here is
admittedly a little bit different from the 1973 concept x x x The idea
here is to address ourselves to the problem that those who have
unlawfully benefitted from the acquisition of public property over the
70
years, through technicalities or practice, have gained immunity and
that, therefore, the right of the people to recover should be respected
x x x.5
xxx
SPONSORSHIP SPEECH OF COMMISSIONER COLAYCO
MR. COLAYCO. Thank you, Madam President.
The Committee is proposing the creation of an office which can act in
a quick, inexpensive and effective manner on complaints against the
administrative inaction, abuse and arbitrariness of government
officials and employees in dealing with the people. x x x.
xxx
[W]e have proposed as briefly as possible in our resolution an office
which will not require any formal condition for the filing of a complaint.
Under our proposal, a person can file a complaint even by telephone
and without much ado, the office of the Ombudsman is under
obligation to see to it that the complaint is acted upon, not merely
attended to but acted upon. x x x. If the employee admits that there
was reason behind the complaint, he is told to do what the
complainant wanted him to do without much ado. And then that is
followed up by the corresponding report to the department of the
government which has supervision over the employee at fault, with
the proper recommendation.
xxx
Under our proposal, the Ombudsman is empowered to investigate, to
inquire into and to demand the production of documents involving
transactions and contracts of the government where disbursement of
public funds is reported. x x x [t]he main thrust is action; the
disciplinary or punitive remedy is secondary. On a higher level then,
the Ombudsman is going to be the eyes and ears of the people.
Where administrative action demanded is not forthcoming x x x he
(Ombudsman) is authorized to make public the nature of the
complaint and the inaction of the official concerned, x x x.6
 xxx
SPONSORSHIP SPEECH OF COMMISSIONER NOLLEDO
MR. NOLLEDO. Thank you, Madam President.
xxx
Madam President, the creation of an Ombudsman x x x is in answer
to the crying need of our people for an honest and responsive
government. The office of the Ombudsman as proposed by the
Committee on Accountability of Public Officers, x x x is really an
institution primarily for the citizens as against the malpractices and
corruption in the government. As an official critic, the Ombudsman
will study the law, the procedure and practice in the government, and
make appropriate recommendations for a more systematic operation
of the governmental machinery, free from bureaucratic
inconveniences. As a mobilizer, the Ombudsman will see to it that
there be a steady flow of services to the individual consumers of
government. And as a watchdog, the Ombudsman will look after the
general, as well as specific, performances of all government officials
and employees so that the law may not be administered with an evil
eye or an uneven hand.7
On the other hand, E. O. No. 1 enumerates the objectives of the
creation of the Truth Commission, thus:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
xxx
71
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to reorganize
the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of
the Republic of the Philippines, by virtue of the powers vested in me
by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
xxx
A comparison between the aforequoted objectives of the Office of the
Ombudsman and the Truth Commission quickly reveals that the Truth
Commission is superfluous, because it replicates or imitates the work
of the Office of the Ombudsman. The result is that the Truth
Commission can even usurp the functions, duties, and responsibilities
of the Office of the Ombudsman. That usurpation is not a desirable The Lawphil Project - Arellano Law Foundation
result, considering that the public faith and trust in the Office of the
Ombudsman, as a constitutionally-created office imbued with specific
powers and duties to investigate and prosecute graft and corruption,
may be eroded.
SEPARATE OPINION
ACCORDINGLY, I vote to grant the petitions.
PEREZ, J.:
LUCAS P. BERSAMIN
Associate Justice
Executive Order No. 1 of President Benigno S. Aquino III Creating the
Philippine Truth Commission of 2010 violates Article XI, Section 5
and Section 7 together with Section 13(1) and (7) and related
provisions in Paragraphs (2), (3), (4), (5) and (6) of the same Section
7, all of the Philippine Constitution.
Footnotes
Particularized, the presidential issuance offends against the
1
Philippine Constitution Association v. Hon. Enriquez, G.R. independence of the Office of the Ombudsman; defies the protection
Nos. 113105, 113174, 113766 and 113888, August 19, 1994, against legislation of the mandates of the Ombudsman; and defiles
235 SCRA 506. the bestowal of these mandates by their reappointment to the lesser
body. The presidential creation, if unchecked, would, under the layer
2
G.R. Nos. 191002, 191032, 191057, 191149, 191342 and of good intentions, sully the integrity of the organic act which, for law
191420, and A.M. No. 10-2-5-SC, March 17, 2010. to rule, can be touched by no one except the sovereign people and
only by the way and manner they have ordained. This is a democratic
3
Secretary of the Department of Transportation and original. The sovereign people can, of course, choose to cut the
Communications v. Malabot, G.R. No. 138200, February 27, essential ties, scatter the existing entirety and slay the standing
2002, 378 SCRA 128. system. That did not happen. The sovereign elected to stay put; to
stay in the present ordinance. Everyone must honor the election. And
4
Mondano v. Silvosa, 97 Phil. 143. there can be no permissible disregard, even in part, of the free and
deliberate choice.
5
Record of the Deliberation of the 1986 Constitutional
Commission, R.C.C. No. 40, Saturday, July 26, 1986, pp. The proposition is truly significant in this study of the questioned
265. executive order. The country has had a historic revolution that gave
the people the chance to right the wrong that shoved the nation on
the verge. A new charter was written. But the topic of Executive Order
6
Id., at 265-266.
No. 1, accountability of public officers, was rewritten and as the same
constitutional heading. The injunction that public office is a public
7
Id., at 267. trust, including its meaning and import, was copied from the
otherwise discarded document. And having adopted the objective of
the old, the new law assumed likewise the means for the end which

72
are the anti-graft institutions of 1973,to wit, the special graft court
named Sandiganbayan and the Ombudsman, the corruption
investigator and prosecutor then known as the Tanodbayan both of
which were, in the 1973 Charter, ordered created by legislation.
The transplant of idea and mechanism, the adoption of the ends and
the assumption of the means of 1973 leads to the definite conclusion
that the present Constitution is an affirmance that, driven by the
breadth of corruption in public office needing enduring solutions,
there must be no less than a constitutionally secured institution with
impregnable authority to combat corruption. This is the Ombudsman.
Uy vs. Sandiganbayan,1 chronicled the origins of the Ombudsman. It
was there recounted that:
In the advent of the 1973 Constitution, the members of the
Constitutional Convention saw the need to constitutionalize the office
of the Ombudsman, to give it political independence and adequate
powers to enforce its recommendations. The 1973 Constitution
mandated the legislature to create an office of the Ombudsman to be
known as Tanodbayan. Its powers shall not be limited to receiving
complaints and making recommendations, but shall also include the
filing and prosecution of criminal, civil or administrative case before
the appropriate body in case of failure of justice. Section 6, Article XIII
of the 1973 Constitution read:
Section 6. The Batasang Pambansa shall create an office of the
Ombudsman, to be known as Tanodbayan, which shall receive and
investigate complaints relative to public office, including those in
government-owned or controlled corporations, make appropriate
recommendations, and in case of failure of justice as defined by law,
file and prosecute the corresponding criminal, civil or administrative
case before the proper court of body.
Uy went on to enumerate the implementing presidential decrees,
issued as legislation, namely Presidential Decree No. 1487 creating
the Office of the Ombudsman known as the Tanodbayan; Presidential
Decree No. 1607 broadening the authority of the Tanodbayan to
investigate administrative acts of administrative agencies;
Presidential Decree 1630 reorganizing the Office of the Tanodbayan
73
and vesting the powers of the Special Prosecutor in the Tanodbayan
himself.
The events at and following the ratification of the 1987 Constitution,
as likewise historified in Uy, must be made part of this writer’s
position:
With the ratification of the 1987 Constitution, a new Office of the
Ombudsman was created. The present Ombudsman, as protector of
the people, is mandated to act promptly on complaints filed in any
form or manner against public officials or employees of the
government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and to notify
the complainants of the action taken and the result thereof. He
possesses the following powers, functions and duties:
1. Investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient;
2. Direct, upon complaint or at its own instance, any public
official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original
charter, to perform and expedite any act or duty required by
law, or to stop, prevent and correct any abuse or impropriety
in the performance of duties.
3. Direct the officer concerned to take appropriate action
against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
4. Direct the officer concerned, in any appropriate case, and
subject to such limitations as may be provided by law, to
furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the
disbursements or use of public funds or properties, and report
 any irregularity to the Commission on Audit for appropriate
action.
5. Request any government agency for assistance and
information necessary in the discharge of its responsibilities,
and to examine, if necessary, pertinent records and
documents.
6. Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
7. Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the
observance of high standards of ethics and efficiency.
8. Promulgate its rules or procedure and exercise such other
powers or perform such functions or duties as may be
provided by law.
As a new Office of the Ombudsman was established, the then
existing Tanodbayan became the Office of the Special Prosecutor
which continued to function and exercise its powers as provided by
law, except those conferred on the Office of the Ombudsman created
under the 1987 Constitution.
The frameworks for the Office of the Ombudsman and the Office of
the Special Prosecutor were laid down by President Corazon Aquino
in Executive Order (EO) 243 and EO 244, both passed on July 24,
1987.
In September 1989, Congress passed RA 6770 providing for the
functional and structural organization of the Office of the
Ombudsman. As in the previous laws on the Ombudsman, RA 6770
gave the present Ombudsman not only the duty to receive and relay
the people’s grievances, but also the duty to investigate and
prosecute for and in their behalf, civil, criminal and administrative
offenses committed by government officers and employees as
embodied in Sections 15 and 11 of the law.2
74
Clear then from the chronicle, that, as it was at the time of its
constitutionalization in 1973, the power of the Ombudsman "shall not
be limited to receiving complaints and making recommendations, but
shall also include the filing and prosecution of criminal xxx cases
before the appropriate body xxx." More importantly, the grant of
political independence to the Ombudsman which was the spirit
behind the 1973 provisions was specifically stated in the 1987
Constitution. Thus:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy, and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate Deputy for the Military
establishment may likewise be appointed. (Underscoring supplied.)
Of direct relevance and application to the case at bar is the reason
behind the constitutionalization of the Ombudsman. Again, we refer to
Uy3 citing Cortez, Redress of Grievance and the Philippine
Ombudsman (Tanodbayan):
In this jurisdiction, several Ombudsman-like agencies were
established by past Presidents to serve as the people’s medium for
airing grievances and seeking redress against abuses and
misconduct in the government. These offices were conceived with the
view of raising the standard in public service and ensuring integrity
and efficiency in the government. In May 1950, President Elpidio
Quirino created the Integrity Board charged with receiving complaints
against public officials for acts of corruption, dereliction of duty and
irregularity in office, and conducting a thorough investigation of these
complaints. The Integrity Board was succeeded by several other
agencies which performed basically the same functions of
complaints-handling and investigation. These were the Presidential
Complaints and Action Commission under President Ramon
Magsaysay, the Presidential Committee on Administration
Performance Efficiency under President Carlos Garcia, the
Presidential Anti-Graft Committee under President Diosdado
Macapagal, and the Presidential Agency on Reform and Government
Operations and the Office of the Citizens counselor, both under
President Ferdinand Marcos. It was observed, however, that these
agencies failed to realize their objective for they did not enjoy the
political independence necessary for the effective performance of
their function as government critic. Furthermore, their powers
extended to no more than fact-finding and recommending.
The lack of political independence of these presidential commissions,
to which was attributed their failure to realize their objectives, was
clarified during the deliberations of the Constitutional Commission on
what is now Article XI of the Constitution with, as already observed,
the same heading used in 1973, "Accountability of Public Officials."
The Commissioners also alluded to the unsuccessful presidential
attempts.
In his sponsorship speech, Commissioner Colayco, Vice-Chairman of
the Committee on Accountability of Public Officers, articulated:
In 1950, for instance, President Quirino created the Integrity Board in
an attempt to formalize the procedure for executive direction and
control of the bureaucracy. This Board lasted for six months. When
President Magsaysay took over the reins of government in 1953, he
created the Presidential Complaints and Action Committee. The
primary purpose of this Committee was to expedite action on
complaints received by the Office of the President against the manner
in which the officials of the executive departments and offices were
performing the duties entrusted to them by law, or against their acts,
conduct or behavior. xxx. But again politics came in – this office did
not last long. Two months after President Magsaysay’s death, the
office was abolished.
Next, President Garcia created his own Presidential Committee on
Administration, Performance and Efficiency [PCAPE]. Again this
office did not last long and was replaced by the Presidential Agency
on Reforms and Government Operations or PARGO under the
regime of President Marcos.4
As Commissioner Colayco pointed out in the continuation of his
sponsorship speech: although these programs were "good per se,"
the succeeding Presidents discarded them – as the incoming
Presidents generally tend to abandon the policies and programs of
their predecessors – a political barrier to the eventual success of
these bodies. He concluded by saying that "[t]he intention, therefore,
75
of our proposal is to constitutionalize the office so that it cannot be
touched by the Presidents as they come and go."
It may thus be said that the 1987 Constitution completed the
Ombudsman’s constitutionalization which was started in 1973. The
past Constitution mandated the creation by the legislature, the
National Security Assembly, later the Batasang Pambansa, of an
office of the Ombudsman, which mandate, incidentally, was given
also for the creation of a special court, the Sandiganbayan. The
present Constitution, while allowing the continuation of the
Sandiganbayan and leaving its functions and jurisdiction to provisions
"by law," itself created "the independent Office of the Ombudsman"
and itself determined its powers, functions and duties. The
independence of the Ombudsman is further underscored by the
constitutional orders that the Ombudsman and his Deputies shall be
appointed by the President from a list prepared by the Judicial and
Bar Council which appointments shall require no confirmation; that
the Ombudsman and his Deputies shall have the rank of Chairman
and Members, respectively, of the Constitutional Commissions, and
they shall receive the same salary, which shall not be decreased
during their term of office; that the Office of the Ombudsman shall
enjoy fiscal autonomy and its approved annual appropriations shall
be automatically and regularly released; and that the Ombudsman
may only be removed from office by impeachment.5
It is with the ground and setting just described that Executive Order
No. 1 created the Philippine Truth Commission. Naturally, the Order
had to state that the Philippine Truth Commission was created by the
President of the Republic of the Philippines further describing the act
as the exercise of his "continuing authority to reorganize the Office of
the President." The Order specified that the budget of the
Commission shall be provided by the Office of the President and
even its furniture and equipment will come from the Office of the
President. More significantly, a basic premise of the creation is the
President’s battlecry during his campaign for the Presidency in the
last elections "kung walang corrupt, walang mahirap," which is
considered a "solemn pledge that if elected, he would end corruption
and the evil it breeds." So much so that the issuance states that "a
comprehensive final report shall be published upon directive of the
President" upon whose directive likewise, interim reports may issue
from time to time.
The Philippine Truth Commission anchored itself on the already
constitutionalized principle that public office is a public trust. It
adopted the already defined goal to circle and contain corruption, an
enemy of the good state already identified way back in 1973. What
Executive Order No. 1 did was to shorten the sight and set it from the
incumbent’s standpoint. Therefrom, it fixed its target at "reported
cases of graft and corruption involving third level public officers and
higher, their co-principals, accomplice and accessories from the
private sector" and further pinpointed the subjects as "third level
public officers during the previous administration." For this
commission, the Philippine Truth Commission was presidentially
empowered as an "investigative body" for a thorough fact finding
investigation, thereafter to:
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutional authorities, by means of a special or interim
report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals,
accomplice or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent
applicable laws.
Having thus taken account of the foregoing, this writer takes the
following position:
1. In light of the constitutionally declared and amply underscored
independence of the Office of the Ombudsman, which declaration is
winnowed wisdom from the experienced inherent defects of
presidential creations, so real and true that the Ombudsman’s
constitutionalization was adopted to completion even if from the
charter of an overthrown regime, Executive Order No. 1 cannot pass
the present constitutional test. Executive Order No. 1 is
unconstitutional precisely because it was issued by the President. As
articulated by Commissioner Colayco of the Commission that
resurrected the Ombudsman, "our proposal is to constitutionalize the
office so that it cannot be touched by the Presidents as they come
and go." And as this Court stated, repeating the observation
regarding the erstwhile presidential anti-graft commissions, such
commissions failed to realize their objective because they did not
76
enjoy the political independence necessary for the effective
performance of a government critic.
Relevant too are the words of Commissioner Regalado:
It is said here that the Tanodbayan or the Ombudsman would be a
toothless or a paper tiger. That is not necessarily so. If he is
toothless, then let us give him a little more teeth by making him
independent of the Office of the President because it is now a
constitutional creation, so that the insidious tentacles of politics, as
has always been our problem, even with PARGO, PCAPE and so
forth, will not deprive him of the opportunity to render service to Juan
dela Cruz.6
Verily, the Philippine Truth Commission is a defiance of the
constitutional wisdom that established the politically independent
Ombudsman for one of its reasons for being is the very campaign
battlecry of the President "kung walang corrupt, walang mahirap." Not
that there is anything wrong with the political slogan. What is wrong is
the pursuit of the pledge outside the limits of the Constitution. What is
wrong is the creation by the President himself of an Ombudsman-like
body while there stands established an Ombudsman, constitutionally
created especially because of unsuccessful presidential antecedents,
and thus made independent from presidential prerogative.
2. A simple comparison will show that likeness of the Philippine Truth
Commission with the Ombudsman. No such likeness is permitted by
the Constitution.
It can easily be seen that the powers of the Truth Commission to: 1)
identify and determine the reported cases of graft and corruption
which it will investigate; and 2) collect, receive, review and evaluate
evidence related to or regarding the cases of large scale corruption
which it has chosen to investigate,7 are the same as the power of the
Ombudsman to investigate any illegal, unjust, improper, or inefficient
act or omission of any public official, employee, office or agency.8
The authority of the Truth Commission to require any agency, official
or employee of the Executive Branch to produce documents, books,
records and other papers9 mirrors the authority of the Ombudsman to
direct concerned government officials to furnish it with copies of
documents relating to contracts or transactions entered into by the
latter’s office involving the disbursement or use of public funds or
properties.10
Likewise, the right to obtain information and documents from the
Senate, the House of Representatives and the courts,11 granted by
Executive Order No. 1 to the Truth Commission, is analogous to the
license of the Ombudsman to request any government agency for
assistance and information and to examine pertinent records and
documents.12
And, the powers of the Truth Commission to invite or subpoena
witnesses, take their testimonies, administer oaths13 and impose
administrative disciplinary action for refusal to obey subpoena, take
oath or give testimony14are parallel to the powers to administer oaths,
issue subpoena, take testimony and punish for contempt or subject to
administrative disciplinary action any officer or employee who delays
or refuses to comply with a referral or directive granted by Republic
Act (RA) 677015 to the Ombudsman.
If Executive Order No. 1 is allowed, there will be a violation of Section
7 of Article XI, the essence of which is that the function and powers
(enumerated in Section 13 of Article XI) conferred on the
Ombudsman created under the 1987 Constitution cannot be removed
or transferred by law. Section 7 states:
Section 7. The existing Tanodbayan shall hereafter be known as the
Office of the Special Prosecutor. It shall continue to function and
exercise its powers as now or hereafter may be provided by law,
except those conferred on the Office of the Ombudsman created
under this Constitution.
There is a self-evident reason for the shield against legislation
provided by Section 7 in protection of the functions conferred on the
Office of the Ombudsman in Section 13. The Ombudsman is a
constitutional office; its enumerated functions are constitutional
powers.
77
So zealously guarded are the constitutional functions of the
Ombudsman that the prohibited assignment of the conferred powers
was mentioned in Section 7 in relation to the authority of the
Tanodbayan which, while renamed as Office of the Special
Prosecutor, remained constitutionally recognized and allowed to
"continue to function and exercise its powers as now or hereafter may
be provided by law."
The position of the Office of the Special Prosecutor, as a continuing
office with powers "as may be provided by law" vis-à-vis the
Ombudsman created by the 1987 Constitution would be unraveled by
subsequent law and jurisprudence. Most apt is Zaldivar vs.
Sandiganbayan,16 which said:
Under the 1987 Constitution, the Ombudsman (as distinguished from
the incumbent Tanodbayan) is charged with the duty to:
Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.
The Constitution likewise provides that:
The existing Tanodbayan shall hereafter be known as the Office of
the Special Prosecutor. It shall continue to function and exercise its
powers as now or hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created under this
Constitution.
Now then, inasmuch as the aforementioned duty is given to the
Ombudsman, the incumbent Tanodbayan (called Special Prosecutor
under the 1987 Constitution and who is supposed to retain powers
and duties NOT GIVEN to the Ombudsman) is clearly without
authority to conduct preliminary investigations and to direct the filing
of criminal cases with the Sandiganbayan, except upon orders of the
Ombudsman. This right to do so was lost effective February 2, 1987.
From that time, he has been divested of such authority.
Under the present Constitution, the Special Prosecutor (Raul
Gonzalez) is a mere subordinate of the Tanodbayan (Ombudsman)
and can investigate and prosecute cases only upon the latter’s
authority or orders. The Special Prosecutor cannot initiate the
prosecution of cases but can only conduct the same if instructed to
do so by the Ombudsman. Even his original power to issue
subpoena, which he still claims under Section 10(d) of PD 1630, is
now deemed transferred to the Ombudsman, who may, however,
retain it in the Special Prosecutor in connection with the cases he is
ordered to investigate. (Underscoring supplied.)
The ruling was clear: the duty to investigate contained in Section
13(1) having been conferred on the Office of the Ombudsman, left the
then Tanodbayan without authority to conduct preliminary
investigation except upon orders of the Ombudsman. The message
was definite. The conferment of plenary power upon the Ombudsman
to investigate "any act or omission of any public official xxx when
such act or omission appears to be illegal, unjust, improper or
inefficient" cannot, after 1987 and while the present Constitution
remains, be shared even by the body previously constitutionalized as
vested with such authority, even if there is such assignment "by law."
Indeed, the subsequent law obeyed Section 7 as correctly read in
Zaldivar. Thus, in Republic Act No. 6770, an Act Providing For the
Functional And Structural Organization of the Office of the
Ombudsman and For Other Purposes, it was made clear in Section
11(3) second sentence that "the Office of the Special Prosecutor shall
be an organic component of the Office of the Ombudsman and shall
be under the supervision and control of the Ombudsman."
Constitutional history, specific constitutional provisions, jurisprudence
and current statute combine to say that after the ratification of the
Constitution in 1987, no body can be given "by law" any of the
powers, functions and duties already conferred on the Ombudsman
by Section 13, Article XI of the Constitution. As already shown, the
Truth Commission insofar as concerns the mentioned third level
officers or higher of the previous administration appropriates, not just
one but virtually, all of the powers constitutionally enumerated for the
Ombudsman. The violation of Section 7 in relation to Section 13 of
Article XI of the Constitution is evident.
3. No comfort is given to the respondents by the fact that, as
mentioned in Honasan II vs. Panel of Investigating Prosecutors of the
78
Department of Justice,17 there are "jurisprudential declarations" that
the Ombudsman and the Department of Justice (DOJ) have
concurrent jurisdiction. Concurrence of jurisdiction does not allow
concurrent exercise of such jurisdiction. Such is so that the
Ombudsman Act specifically states in Section 15 that the
Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan – precisely the kind of cases covered by the
Philippine Truth Commission – and proceeds to define "primary
jurisdiction" by again, specifically, stating that the Ombudsman "may
take over, at any stage, from any investigation of such cases." This
primary jurisdiction was the premise when a majority of the Court in
Honasan discussed the relevance of OMB-DOJ Joint Circular No. 95-
001 (which provides that the preliminary investigation and
prosecution of offenses committed by public officers in relation to
office filed with the Office of the Prosecutor shall be "under the control
and supervision of the Office of the Ombudsman") in relation to
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure on Preliminary Investigation, which concerns the review of
the resolution of the investigating prosecutor in such
cases. Honasan would conclude that the authority of the DOJ
prosecutors to conduct preliminary investigation of offenses within the
original jurisdiction of the Sandiganbayan is subject to the
qualification:
xxx that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation,
transmit the records and their resolutions to the Ombudsman or his
deputy for appropriate action. Also, the prosecutor cannot dismiss the
complaint without prior written authority of the Ombudsman or his
deputy, nor can the prosecutor file an Information with the
Sandiganbayan without being deputized by, and without prior written
authority of the Ombudsman, or his deputy.18 (Underscoring in the
original)
Three separate opinions, two of which were dissents were submitted
in Honasan. Justice Vitug said that the investigating fiscal must be
particularly deputized by the Ombudsman and the investigation must
be conducted under the supervision and control of the
Ombudsman;19 Justice Ynares-Santiago discussed at length the
concept of primary jurisdiction and took the position that:20
Where the concurrent authority is vested in both the Department of
Justice and the Office of the Ombudsman, the doctrine of primary
jurisdiction should operate to restrain the Department of Justice from
exercising its investigative authority if the case will likely be
cognizable by the Sandiganbayan. In such cases, the Office of the
Ombudsman should be the proper agency to conduct the preliminary
investigation over such an offense, it being vested with the
specialized competence and undoubted probity to conduct the
investigation.
Justice Sandoval-Gutierrez was more straightforward:21
While the DOJ has a broad general jurisdiction over crimes found in
the Revised Penal Code and special laws, however, this jurisdiction is
not plenary or total. Whenever the Constitution or statute vests
jurisdiction over the investigation and prosecution of certain crimes in
an office, the DOJ has no jurisdiction over those crimes. In election
offenses, the Constitution vests the power to investigate and
prosecute in the Commission on Elections. In crimes committed by
public officers in relation to their office, the Ombudsman is given by
both the Constitution and the statute the same power of investigation
and prosecution. These powers may not be exercised by the DOJ.
xxx
At the very least, therefore, the prosecutor, in Sandiganbayan cases
must, after investigation transmit the records and their resolution to
the Ombudsman whose prior written authority is needed before the
prosecutor can dismiss a complaint or file an information in which
latter instance, a deputization of the fiscal is additionally needed.
Even as this writer submits that the position of the minority in
Honasan hews far better to the Constitution since, as already
observed, the Ombudsman’s authority excludes even the
Tanodbayan which used to be the constitutionally recognized holder
of the power, the further submission is that the majority ruling to the
effect that the Ombudsman is the supervisor of the prosecutor who
investigates graft in high places, nonetheless illegalizes the Philippine
Truth Commission.
Respondent’s main reliance is that –
79
Unlike that of the OMB or DOJ which conducts formal investigation as
a result of criminal complaints filed before them, or upon reports, the
Truth Commission conducts fact-finding investigation preliminary to
the filing of a complaint that could lead to a criminal investigation.22
If the Philippine Truth Commission would, indeed, conduct only fact-
finding investigations preliminary to a criminal investigation, then the
foregoing discussion would truly be irrelevant. The fact, however, is
that the Philippine Truth Commission is, to use the Solicitor General’s
phrase a "criminal investigator" or one who conducts a preliminary
investigation for the prosecution of a criminal case.
Detailing the powers and functions of the Philippine Truth
Commission, Section 2 of Executive Order No. 1 says that the
Commission shall identify and determine the reported cases of such
graft and corruption which it will investigate(Section 2[a]) and collect,
receive, review and evaluate evidence related to or regarding the
cases of large scale corruption which it has chosen to investigate
(Sec. 2[b]). As aforenoted, the Philippine Truth Commission’s power
to investigate graft and corruption is no different from the
constitutional power of the Ombudsman to investigate any act of any
public official when such act appears to be illegal, unjust, improper, or
inefficient. The Philippine Truth Commission cannot avoid the
comparison by differentiating "formal investigation" or "criminal
investigation" which it says is conducted by the Ombudsman or the
DOJ, from the "fact-finding investigation" of the Philippine Truth
Commission. Let us go back to Zaldivar. There it was as much as
stated that the power to investigate mentioned in Section 13(1) of the
1987 Constitution is the authority to conduct preliminary investigation
which authority was removed from the Tandobayan called Special
Prosecutor when it was given to the Ombudsman. This equivalence
was affirmed in Acop vs. Office of the Ombudsman,23 where it was
stated:
In view of the foregoing, it is evident that the petitioners have not
borne out any distinction between "the duty to investigate" and "the
power to conduct preliminary investigations;" neither have the
petitioners established that the latter remains with the Tanodbayan,
now the Special Prosecutor. Thus, this Court can only reject the
petitioners’ first proposition.
Such established definition of "investigation" of graft and corruption
cases, especially for the purpose of determining the authority of one
body in relation to another, which is exactly one of the issues in this
case, must be read into Executive Order No. 1. No source citation is
needed for the generally accepted rule that the words used in a legal
document, indeed one which is intended to be a law, has the
meaning that is established at the time of the law’s promulgation.
"Investigation" in Section 1(a) of Executive Order No. 1 is the same
as preliminary investigation and its conduct by the Truth Commission
cannot be independent of the Ombudsman. The Truth Commission
cannot exist outside the Ombudsman. Executive Order No. 1 so
places the Truth Commission and, is, therefore unconstitutional.
Indeed, Executive Order No. 1 itself pronounces that what it
empowers the Philippine Truth Commission with is the authority of
preliminary investigation. Section 2(g) of the executive order states:
Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutional authorities, by means of a special or interim
report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals,
accomplice or accessories, if any, when in the course of
its investigation the Commission finds that there is reasonable ground
to believe that they are liable for graft and corruption underpertinent
applicable laws. (Underscoring supplied.)
Investigation to find reasonable ground to believe "that they are liable
for graft and corruption under applicable laws" is preliminary
investigation as defined in Rule 112, Section 1 of the Rules of
Criminal Procedure, which states:
Section 1. Preliminary investigation defined; when required. –
Preliminary investigation is an inquiry or proceeding 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.
Moreover, as clearly stated in Section 2(g) of Executive Order No. 1,
the Philippine Truth Commission will be more powerful than the DOJ
prosecutors who are required, after their investigation, to transmit the
80
records and their resolution for appropriate action by the Ombudsman
or his deputy, which action is taken only after a review by the
Ombudsman. Section 4 of Rule 112 states that:
xxxx
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or approval
of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his
deputy on the ground that a probable cause exists, the latter may, by
himself, file the information against the respondent, or direct another
assistant prosecutor or state prosecutor to do so without conducting
another preliminary investigation.
If upon petition by a proper party under such rules as the Department
of Justice may prescribe or motu proprio, the Secretary of Justice
reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, he shall direct the prosecutor concerned
either to file the corresponding information without conducting
another preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The same
Rule shall apply in preliminary investigations conducted by the
officers of the Office of the Ombudsman.
In other words, under existing Rule which follows the statutorily
defined primary jurisdiction of the Ombudsman in obeisance to the
constitutional conferment of authority, the Ombudsman reviews and
may reverse or modify the resolution of the investigating prosecutor.
In the case of the Philippine Truth Commission, the Ombudsman not
only shares its constitutional power but, over and above this, it is
divested of any and all investigatory power because the Philippine
Truth Commission’s finding of "reasonable ground" is final and
unreviewable and is turned over to the Ombudsman solely for
"expeditious prosecution."
4. There is an attempt by the Solicitor General to read around the
explicitness of Section 2(g) of Executive Order No. 1. Thus, skirting
the words "for expeditious prosecution" and their obvious meanings
as just discussed, the respondents argue that:
The Truth Commission will submit its recommendation to, among
others, the OMB and to the "appropriate prosecutorial authorities"
which then shall exercise their constitutional and statutory powers
and jurisdiction to evaluate the recommendation or endorsements of
the Truth Commission. While findings of the Truth Commission are
recommendatory, the facts gathered by the Commission will
decisively aid prosecutorial bodies in supporting possible indictments
for violations of anti-graft laws. Moreover, the policy
recommendations to address corruption in government will be
invaluable to the Executive’s goal to realize its anti-corruption
policies.24
xxxx
The Reports of the Truth Commission will serve as bases for possible
prosecutions and as sources of policy options xxx.
Fact gathering as basis for preliminary investigation and not as
preliminary investigation itself and basis for prosecution, is,
seemingly, the function respondents want to attribute to the Philippine
Truth Commission to escape the obvious unconstitutional conferment
of Ombudsman power. That is no route out of the bind. Fact
gathering, fact finding, indeed truth finding is, as much as
investigation as preliminary investigation, also constitutionally
conferred on the Ombudsman. Section 12 of Article XI states:
Section 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any
subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof.
The Ombudsman on its own investigates any act or omission of any
public official when such act or omission appears to be illegal
81
(Section 13(1), Article XI of the Constitution). The power is broad
enough, if not specially intended, to cover fact-finding of the tenor that
was given to the Philippine Truth Commission by Executive Order No.
1 which is:
b) Collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate xxx.
And, the objective of the Philippine Truth Commission pointed to by
the Solicitor General which is to make findings for "policy
recommendations to address corruption in government" and to serve
as "sources of policy options" is exactly the function described for and
ascribed to the Ombudsman in Section 13(7), Art. XI of the
Constitution:
(7) Determine the causes of inefficiency, red tape, mismanagement,
fraud, and corruption in the Government and make recommendations
for their elimination and the observance of high standards of ethics
and efficiency.
Moreover, as at the outset already pointed out, the power of the
Philippine Truth Commission to obtain information and documents
from the Congress and the Judiciary [Section 2(c) and (d) of
Executive Order No. 1] is a reproduction of the Ombudsman powers
provided for in Section 13 (4) and (5), Article XI of the Constitution.
Virtually, another Ombudsman is created by Executive Order No. 1.
That cannot be permitted as long as the 1987 Constitution remains as
the fundamental law.
5. To excuse the existence of the presidentially created, manned,
funded and equipped Truth Commission side-by-side with the
Constitutionally created and empowered Ombudsman, the Solicitor
General provides the very argument against the proposition. In page
75 of his memorandum, the Solicitor General says that:
The concerned agencies need not wait until the completion of the
investigation of the Truth Commission before theycan proceed with
their own investigative and prosecutorial functions. Moreover, the
Truth Commission will, from time to time, publish special interim Footnotes
reports and recommendations, over and above the comprehensive
final report. If any, the preliminary reports may aid the concerned 1
G.R. No. 105965-70, 354 SCRA 651, 661.
agencies in their investigations and eventually, in the filing of a
complaint or information. (Underscoring supplied) 2
Id. at 664-665.

Apparently, the statement proceeds from the position that "the power 3
Id. at 660-661.
of the OMB to investigate offenses involving public officers or
employees is not exclusive but is concurrent with other similarly 4
Records of the Constitutional Commission Vol. II, 26 July
authorized agencies of the government."25 Without cutting off from the
1986, p. 267.
discussions that the concurrence of jurisdiction of the Ombudsman
with any other body should be read to mean that at the very least any
finding by any other body is reviewable by the Ombudsman and that
5
Sec. 9, Sec. 10, Sec. 14 and Sec. 2 of Article XI, 1987
in full obedience to the Constitution, graft cases against high officials Constitution.
should be investigated alone by or under the aegis of the
Ombudsman, it need only be repeated that concurrence of jurisdiction
6
Records of the Constitutional Commission, Vol. II, 26 July
does not allow concurrent exercise of jurisdiction. This is the reason 1986, p. 296.
why we have the rule that excludes any other concurrently authorized
body from the body first exercising jurisdiction. This is the reason why 7
Section 2(a) and (b), respectively, E.O. No. 1, dated 30 July
forum shopping is malpractice of law. 2010.

The truth is, in the intensely political if not partisan matter of "reports 8
Article XI, Section 13(1), 1987 Constitution.
of graft and corruption xxx committed by public officers xxx, if any,
during the previous administration," there can only be one finding of 9
Section 2(b), E.O. No. 1, supra note 7.
truth. Any addition to that one finding would result in din and
confusion, a babel not needed by a nation trying to be one. And this 10
Article XI, Section 13(4), 1987 Constitution.
is why all that fall under the topic accountability of public officers have
been particularized and gathered under one authority - The 11
Section 2(c) and (d), E.O. No. 1, supra.
Ombudsman. This was done by the Constitution. It cannot be undone
as the nation now stands and remains. 12
Article XI, Section 13(5), 1987 Constitution.
WHEREFORE, I vote for the grant of the petition and the declaration
of Executive Order No. 1 as unconstitutional.
13
Section 2(e), E.O. No. 1, supra.

JOSE PORTUGAL PEREZ

14
Id., Section 9.
Associate Justice
The Ombudsman Act of 1989, Section 15(8) and (9) and
15

Section 26(4).

16
G.R. Nos. L-79660-707, 27 April 1988, 160 SCRA 843,
846-847.
82
 17
G.R. No. 159747, 13 April 2004, 427 SCRA 46. In G.R. No. 193036, petitioners Edcel C. Lagman, Rodolfo B. Albano,
Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (Lagman, et
18
Id. at 74. al.), as Members of the House of Representatives, filed a petition
under Rule 65 for certiorari and prohibition. Petitioners Lagman, et
19
Id. at 77-78. al. pray for the issuance of a temporary restraining order or writ of
preliminary injunction to declare void EO 1 for being unconstitutional.
20
Id. at 86.
The Powers of the President
21
Id. at 92.
Petitioners Biraogo and Lagman, et al. (collectively petitioners) assail
the creation of the Truth Commission. They claim that President
22
Memorandum for Respondent, p. 79.
Benigno S. Aquino III (President Aquino) has no power to create the
Commission. Petitioners’ objections are mere sound bites, devoid of
23
G.R. No. 120422, 248 SCRA 566, 579. sound legal reasoning.
24
Memorandum for Respondents, pp. 73-74. On 30 July 2010, President Aquino issued EO 1 pursuant to Section
31, Chapter 10, Title III, Book III of Executive Order No. 292 (EO
25
Memorandum for Respondents, p. 82. 292).1 Section 31 reads:

Section 31. Continuing Authority of the President to Reorganize his

The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO, J.:
The two petitions before this Court seek to declare void Executive
Order No. 1, Creating the Philippine Truth Commission of 2010 (EO
1), for being unconstitutional.
In G.R. No. 192935, petitioner Louis C. Biraogo (Biraogo), as a
Filipino citizen and as a taxpayer, filed a petition under Rule 65 for
prohibition and injunction. Biraogo prays for the issuance of a writ of
preliminary injunction and temporary restraining order to declare EO
1 unconstitutional, and to direct the Philippine Truth Commission
(Truth Commission) to desist from proceeding under the authority of
EO 1.
Office. The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of
the President Proper, including the immediate Offices,
the Presidential Special Assistants/Advisers System and
the Common Staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another;
(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies

83
 to the Office of the President from other departments or
agencies. (Emphasis supplied)
The law expressly grants the President the "continuing authority to
reorganize the administrative structure of the Office of the President,"
which necessarily includes the power to create offices within the
Office of the President Proper. The power of the President to
reorganize the Office of the President Proper cannot be disputed as
this power is expressly granted to the President by law. Pursuant to
this power to reorganize, all Presidents under the 1987 Constitution
have created, abolished or merged offices or units within the Office of
the President Proper, EO 1 being the most recent instance. This
Court explained the rationale behind the President’s continuing
authority to reorganize the Office of the President Proper in this way:
x x x The law grants the President this power in recognition of the
recurring need of every President to reorganize his office "to achieve
simplicity, economy and efficiency." The Office of the President is the
nerve center of the Executive Branch. To remain effective and
efficient, the Office of the President must be capable of being shaped
and reshaped by the President in the manner he deems fit to carry
out his directives and policies. After all, the Office of the President is
the command post of the President. This is the rationale behind the
President’s continuing authority to reorganize the administrative
structure of the Office of the President.2 (Emphasis supplied)
The Power To Execute Faithfully the Laws
Section 1, Article VI of the 1987 Constitution states that "[t]he
executive power is vested in the President of the Philippines." Section
17, Article VII of the 1987 Constitution states that "[t]he President
shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully
executed."3 Before he enters office, the President takes the following
oath prescribed in Section 5, Article VII of the 1987 Constitution: "I do
solemnly swear that I will faithfully and conscientiously fulfill my duties
as 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."4
84
Executive power is vested exclusively in the President. Neither the
Judiciary nor the Legislature can execute the law. As the Executive,
the President is mandated not only to execute the law, but also to
execute faithfully the law.
To execute faithfully the law, the President must first know the facts
that justify or require the execution of the law. To know the facts, the
President may have to conduct fact-finding investigations. Otherwise,
without knowing the facts, the President may be blindly or negligently,
and not faithfully and intelligently, executing the law.
Due to time and physical constraints, the President cannot obviously
conduct by himself the fact-finding investigations. The President will
have to delegate the fact-finding function to one or more
subordinates. Thus, the President may appoint a single fact-finding
investigator, or a collegial body or committee. In recognizing that the
President has the power to appoint an investigator to inquire into
facts, this Court held:
Moreover, petitioner cannot claim that his investigation as acting
general manager is for the purpose of removing him as such for
having already been relieved, the obvious purpose of the
investigation is merely to gather facts that may aid the President in
finding out why the NARIC failed to attain its objectives, particularly in
the stabilization of the prices of rice and corn. His investigation is,
therefore, not punitive, but merely an inquiry into matters which the
President is entitled to know so that he can be properly guided in the
performance of his duties relative to the execution and enforcement
of the laws of the land. In this sense, the President may authorize the
appointment of an investigator of petitioner Rodriguez in his capacity
as acting general manager even if under the law the authority to
appoint him and discipline him belongs to the NARIC Board of
Directors. The petition for prohibition, therefore, has no
merit.5 (Boldfacing and italicization supplied)
The Power To Find Facts
The power to find facts, or to conduct fact-finding investigations, is
necessary and proper, and thus inherent in the President’s power to
execute faithfully the law. Indeed, the power to find facts is inherent
not only in Executive power, but also in Legislative as well as Judicial
power. The Legislature cannot sensibly enact a law without knowing
the factual milieu upon which the law is to operate. Likewise, the
courts cannot render justice without knowing the facts of the case if
the issue is not purely legal. Petitioner Lagman admitted this during
the oral arguments:
ASSOCIATE JUSTICE CARPIO:
x x x The power to fact-find is inherent in the legislature, correct? I
mean, before you can pass a law, you must determine the facts. So,
it’s essential that you have to determine the facts to pass a law, and
therefore, the power to fact-find is inherent in legislative power,
correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
And it is also inherent in judicial power, we must know the facts to
render a decision, correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
And it is also inherent in executive power that [the] President has to
know the facts so that he can faithfully execute the laws, correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor, in that context (interrupted).
So (interrupted)
CONGRESSMAN LAGMAN:
Your Honor, in that context, the legislature has the inherent power to
make factual inquiries in aid of legislation. In the case of the Supreme
Court and the other courts, the power to inquire into facts [is] in aid of
adjudication. And in the case of the Office of the President, or the
President himself [has the power] to inquire into the facts in order to
execute the laws.6
Being an inherent power, there is no need to confer explicitly on the
President, in the Constitution or in the statutes, the power to find
facts. Evangelista v. Jarencio7 underscored the importance of the
power to find facts or to investigate:
It has been essayed that the lifeblood of the administrative process is
the flow of fact[s], the gathering, the organization and the analysis of
evidence. Investigations are useful for all administrative
functions, not only for rule making, adjudication, and licensing,
but also for prosecuting, for supervising and directing, for
determining general policy, for recommending legislation, and
for purposes no more specific than illuminating obscure areas to
find out what if anything should be done. An administrative
agency may be authorized to make investigations, not only in
proceedings of a legislative or judicial nature, but also in proceedings
whose sole purpose is to obtain information upon which future action
of a legislative or judicial nature may be taken and may require the
attendance of witnesses in proceedings of a purely investigatory
nature. It may conduct general inquiries into evils calling for
correction, and to report findings to appropriate bodies and make
recommendations for actions. (Emphasis supplied)
The Power To Create A Public Office
The creation of a public office must be distinguished from the creation
of an ad hoc fact-finding public body.

ASSOCIATE JUSTICE CARPIO: The power to create a public office is undeniably a legislative power.
There are two ways by which a public office is created: (1) by law, or

85
(2) by delegation of law, as found in the President’s authority to
reorganize his Office. The President as the Executive does not
inherently possess the power to reorganize the Executive branch.
However, the Legislature has delegated to the President the power to
create public offices within the Office of the President Proper, as
provided in Section 31(1), Chapter 10, Title III, Book III of EO 292.
Thus, the President can create the Truth Commission as a public
office in his Office pursuant to his power to reorganize the Office of
the President Proper.8 In such a case, the President is exercising his
delegated power to create a public office within the Office of the
President Proper. There is no dispute that the President possesses
this delegated power.
In the alternative, the President can also create the Truth
Commission as an ad hoc body to conduct a fact-finding investigation
pursuant to the President’s inherent power to find facts as basis to
execute faithfully the law. The creation of such ad hoc fact-finding
body is indisputably necessary and proper for the President to
execute faithfully the law. In such a case, members of the Truth
Commission may be appointed as Special Assistants or Advisers of
the President,9 and then assigned to conduct a fact-finding
investigation. The President can appoint as many Special Assistants
or Advisers as he may need.10 There is no public office created and
members of the Truth Commission are incumbents already holding
public office in government. These incumbents are given an
assignment by the President to be members of the Truth
Commission. Thus, the Truth Commission is merely an ad hoc body
assigned to conduct a fact-finding investigation.
The creation of ad hoc fact-finding bodies is a routine occurrence in
the Executive and even in the Judicial branches of government.
Whenever there is a complaint against a government official or
employee, the Department Secretary, head of agency or head of a
local government unit usually creates a fact-finding body whose
members are incumbent officials in the same department, agency or
local government unit.11 This is also true in the Judiciary, where this
Court routinely appoints a fact-finding investigator, drawn from
incumbent Judges or Justices (or even retired Judges or Justices
who are appointed consultants in the Office of the Court
86
Administrator), to investigate complaints against incumbent officials
or employees in the Judiciary.
The creation of such ad hoc investigating bodies, as well as the
appointment of ad hoc investigators, does not result in the creation of
a public office. In creating ad hoc investigatory bodies or
appointing ad hoc investigators, executive and judicial officials do not
create public offices but merely exercise a power inherent in their
primary constitutional or statutory functions, which may be to execute
the law, to exercise disciplinary authority, or both. These fact-finding
bodies and investigators are not permanent bodies or functionaries,
unlike public offices or their occupants. There is no separate
compensation, other than per diems or allowances, for those
designated as members of ad hocinvestigating bodies or as ad hoc
investigators.
Presidential Decree No. 1416 (PD 1416) cannot be used as basis of
the President’s power to reorganize his Office or create the Truth
Commission. PD 1416, as amended, delegates to the President
"continuing authority to reorganize the National Government,"12 which
means the Executive, Legislative and Judicial branches of
government, in addition to the independent constitutional bodies.
Such delegation can exist only in a dictatorial regime, not under a
democratic government founded on the separation of powers. The
other powers granted to the President under PD 1416, as amended,
like the power to transfer appropriations without conditions and the
power to standardize salaries, are also contrary to the provisions of
the 1987 Constitution.13 PD 1416, which was promulgated during the
Martial Law regime to facilitate the transition from the presidential to a
parliamentary form of government under the 1973 Constitution,14 is
now functus officio and deemed repealed upon the ratification of the
1987 Constitution.
The President’s power to create ad hoc fact-finding bodies does not
emanate from the President’s power of control over the Executive
branch. The President’s power of control is the power to reverse,
revise or modify the decisions of subordinate executive officials, or
substitute his own decision for that of his subordinate, or even make
the decision himself without waiting for the action of his
subordinate.15 This power of control does not involve the power to
create a public office. Neither does the President’s power to find facts
or his broader power to execute the laws give the President the
power to create a public office. The President can exercise the
1avvphi1
power to find facts or to execute the laws without creating a public
office.
Objections to EO 1
There Is No Usurpation of Congress’
Power To Appropriate Funds
Petitioners Lagman, et al. argue that EO 1 usurps the exclusive
power of Congress to appropriate funds because it gives the
President the power to appropriate funds for the operations of the
Truth Commission. Petitioners Lagman, et al. add that no particular
source of funding is identified and that the amount of funds to be
used is not specified.
Congress is exclusively vested with the "power of the purse,"
recognized in the constitutional provision that "no money shall be paid
out of the Treasury except in pursuance of an appropriation made by
law."16 The specific purpose of an appropriation law is to authorize the
release of unappropriated public funds from the National Treasury.17
Section 11 of EO 1 merely states that "the Office of the President
shall provide the necessary funds for the Commission to ensure that
it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously
as possible." Section 11 does not direct the National Treasurer to
release unappropriated funds in the National Treasury to finance the
operations of the Truth Commission. Section 11 does not also say
that the President is appropriating, or is empowered to appropriate,
funds from the unappropriated funds in the National Treasury.
Clearly, there is absolutely no language in EO 1 appropriating, or
empowering the President to appropriate, unappropriated funds in the
National Treasury.
Section 11 of EO 1 merely states that the Office of the President shall
fund the operations of the Truth Commission. Under EO 1, the funds
to be spent for the operations of the Truth Commission have already
been appropriated by Congress to the Office of the President under
87
the current General Appropriations Act. The budget for the Office of
the President under the annual General Appropriations Act always
contains a Contingent Fund18 that can fund the operations of ad hoc
investigating bodies like the Truth Commission. In this case, there is
no appropriation but merely a disbursement by the President of funds
that Congress had already appropriated for the Office of the
President.
The Truth Commission Is Not
A Quasi-Judicial Body
While petitioners Lagman, et al. insist that the Truth Commission is a
quasi-judicial body, they admit that there is no specific provision in
EO 1 that states that the Truth Commission has quasi-judicial
powers.19
ASSOCIATE JUSTICE CARPIO:
Okay. Now. Let’s tackle that issue. Where in the Executive Order is it
stated that [the Truth Commission] has a quasi-judicial power? Show
me the provision.
CONGRESSMAN LAGMAN:
There is no exact provision.
There is no language in EO 1 granting the Truth Commission quasi-
judicial power, whether expressly or impliedly, because the Truth
Commission is not, and was never intended to be, a quasi-judicial
body. The power of the President to create offices within the Office of
the President Proper is a power to create only executive or
administrative offices, not quasi-judicial offices or bodies. Undeniably,
a quasi-judicial office or body can only be created by the Legislature.
The Truth Commission, as created under EO 1, is not a quasi-judicial
body and is not vested with any quasi-judicial power or function.
The exercise of quasi-judicial functions involves the determination,
with respect to the matter in controversy, of what the law is, what the
legal rights and obligations of the contending parties are, and based
thereon and the facts obtaining, the adjudication of the respective
rights and obligations of the parties.20 The tribunal, board or officer
exercising quasi-judicial functions must be clothed with the power to
pass judgment on the controversy.21 In short, quasi-judicial power
is the power of an administrative body to adjudicate the rights
and obligations of parties under its jurisdiction in a manner that
is final and binding, unless there is a proper appeal. In the recent
case of Bedol v. Commission on Elections,22 this Court declared:
Quasi-judicial or administrative adjudicatory power on the other
hand is the power of the administrative agency to adjudicate the
rights of persons before it. It is the power to hear and determine
questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by the law itself in
enforcing and administering the same law. The administrative body
exercises its quasi-judicial power when it performs in a judicial
manner an act which is essentially of an executive or administrative
nature, where the power to act in such manner is incidental to or
reasonably necessary for the performance of the executive or
administrative duty entrusted to it. In carrying out their quasi-judicial
functions the administrative officers or bodies are required to
investigate facts or ascertain the existence of facts, hold hearings,
weigh evidence, and draw conclusions from them as basis for their
official action and exercise of discretion in a judicial
nature.23 (Emphasis supplied)
Under EO 1, the Truth Commission primarily investigates reports of
graft and corruption and recommends the appropriate actions to be
taken. Thus, Section 2 of EO 1 states that the Truth Commission is
"primarily tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption and thereafter submit its
findings and recommendations to the President, Congress and the
Ombudsman." The President, Congress and the Ombudsman are not
bound by the findings and recommendations of the Truth
Commission. Neither are the parties subject of the fact-finding
investigation bound by the findings and recommendations of the
Truth Commission.
Clearly, the function of the Truth Commission is
merely investigative and recommendatory in nature. The Truth
Commission has no power to adjudicate the rights and obligations of
the persons who come before it. Nothing whatsoever in EO 1 gives
88
the Truth Commission quasi-judicial power, expressly or impliedly. In
short, the Truth Commission is not a quasi-judicial body because it
does not exercise the quasi-judicial power to bind parties before it
with its actions or decisions.
The creation of the Truth Commission has three distinct purposes
since it is tasked to submit its findings to the President, Congress and
the Ombudsman. The Truth Commission will submit its findings to the
President so that the President can faithfully execute the law. For
example, the Truth Commission may recommend to the President
that Department Secretaries should personally approve
disbursements of funds in certain contracts or projects above a
certain amount and not delegate such function to their
Undersecretaries.24 The Truth Commission will also submit its
findings to Congress for the possible enactment by Congress of
remedial legislation. For example, Congress may pass a law
penalizing Department Secretaries who delegate to their
Undersecretaries the approval of disbursement of funds contrary to
the directive of the President. Lastly, the Truth Commission will
submit its findings to the Ombudsman for possible further
investigation of those who may have violated the law. The
Ombudsman may either conduct a further investigation or simply
ignore the findings of the Truth Commission. Incidentally, the
Ombudsman has publicly stated that she supports the creation of the
Truth Commission and that she will cooperate with its investigation.25
That EO 1 declares that the Truth Commission "will act as an
independent collegial body" cannot invalidate EO 1. This provision
merely means that the President will not dictate on the members of
the Truth Commission on what their findings and recommendations
should be. The Truth Commission is free to come out with its own
findings and recommendations, free from any interference or
pressure from the President. Of course, as EO 1 expressly provides,
the President, Congress and the Ombudsman are not bound by such
findings and recommendations.
There Is No Usurpation of the
Powers of the Ombudsman
Petitioners Lagman, et al. argue that since the Ombudsman has the
exclusive jurisdiction to investigate graft and corruption cases, the
Truth Commission encroaches on this exclusive power of the
Ombudsman.
There are three types of fact-finding investigations in the Executive
branch. First, there is the purely fact-finding investigation the purpose
of which is to establish the facts as basis for future executive action,
excluding the determination of administrative culpability or the
determination of probable cause. Second, there is the administrative
investigation to determine administrative culpabilities of public
officials and employees. Third, there is the preliminary investigation
whose sole purpose is to determine probable cause as to the
existence and perpetrator of a crime. These three types of fact-finding
investigations are separate and distinct investigations.
A purely fact-finding investigation under the Office of the President is
the first type of fact-finding investigation. Such fact-finding
investigation has three distinct objectives. The first is to improve
administrative procedures and efficiency, institute administrative
measures to prevent corruption, and recommend policy options − all
with the objective of enabling the President to execute faithfully the
law. The second is to recommend to Congress possible legislation in
response to new conditions brought to light in the fact-finding
investigation. The third is to recommend to the head of office the filing
of a formal administrative charge, or the filing of a criminal complaint
before the prosecutor.
Under the third objective, the fact-finding investigation is merely a
gathering and evaluation of facts to determine whether there is
sufficient basis to proceed with a formal administrative charge, or the
filing of a criminal complaint before the prosecutor who will conduct a
preliminary investigation. This purely fact-finding investigation does
not determine administrative culpability or the existence of probable
cause. The fact-finding investigation comes before an administrative
investigation or preliminary investigation, where administrative
culpability or probable cause, respectively, is determined.
On the other hand, an administrative investigation follows, and takes
up, the recommendation of a purely fact-finding investigation to
charge formally a public official or employee for possible misconduct
in office. Similarly, a preliminary investigation is an inquiry to
determine whether there is sufficient ground to believe that a crime
89
has been committed and that the respondent is probably guilty of
such crime, and should be held for trial.26 A preliminary investigation’s
sole purpose is to determine whether there is probable cause to
charge a person for a crime.
Section 15 of Republic Act No. 677027 provides:
SEC. 15. Powers, Functions and Duties. - The Office of the
Ombudsman shall have the following powers, functions and duties: x
xx
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office
or agency when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of his
primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such
cases; x x x (Emphasis supplied)
The Ombudsman has "primary jurisdiction over cases cognizable by
the Sandiganbayan." The cases cognizable by the Sandiganbayan
are criminal cases as well as quasi-criminal cases like the forfeiture of
unexplained wealth.28 "[I]n the exercise of this primary jurisdiction"
over cases cognizable by the Sandiganbayan, the Ombudsman "may
take over x x x the investigation of such cases" from any investigatory
agency of the Government. The cases covered by the "primary
jurisdiction" of the Ombudsman are criminal or quasi-criminal cases
but not administrative cases. Administrative cases, such as
administrative disciplinary cases, are not cognizable by the
Sandiganbayan. With more reason, purely fact-finding investigations
conducted by the Executive branch are not cognizable by the
Sandiganbayan.
Purely fact-finding investigations to improve administrative
procedures and efficiency, to institute administrative measures to
prevent corruption, to provide the President with policy options, to
recommend to Congress remedial legislation, and even to determine
whether there is basis to file a formal administrative charge against a
government official or employee, do not fall under the "primary
jurisdiction" of the Ombudsman. These fact-finding investigations do
not involve criminal or quasi-criminal cases cognizable by the
Sandiganbayan.
If the Ombudsman has the power to take-over purely fact-finding
investigations from the President or his subordinates, then the
President will become inutile. The President will be wholly dependent
on the Ombudsman, waiting for the Ombudsman to establish the
facts before the President can act to execute faithfully the law. The
Constitution does not vest such power in the Ombudsman. No statute
grants the Ombudsman such power, and if there were, such law
would be unconstitutional for usurping the power of the President to
find facts necessary and proper to his faithful execution of the law.
Besides, if the Ombudsman has the exclusive power to conduct fact-
finding investigations, then even the Judiciary and the Legislature
cannot perform their fundamental functions without the action or
approval of the Ombudsman. While the Constitution grants the Office
of the Ombudsman the power to "[i]nvestigate on its own x x x any act
or omission of any public official, employee, office or agency,"29 such
power is not exclusive. To hold that such investigatory power is
exclusive to the Ombudsman is to make the Executive, Legislative
and Judiciary wholly dependent on the Ombudsman for the
performance of their Executive, Legislative and Judicial functions.
Even in investigations involving criminal and quasi-criminal cases
cognizable by the Sandiganbayan, the Ombudsman does not have
exclusive jurisdiction to conduct preliminary investigations.
In Honasan II v. The Panel of Investigating Prosecutors of the
Department of Justice,30 this Court held:
In summation, the Constitution, Section 15 of the Ombudsman
Act of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive jurisdiction
to investigate offenses committed by public officers or
employees. The authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with other
government investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise of its primary
jurisdiction over cases cognizable by the Sandiganbayan, may take
90
over, at any stage, from any investigating agency of the government,
the investigation of such cases.31 (Emphasis supplied)
To repeat, Honasan II categorically ruled that "the Constitution,
Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give the Ombudsman
exclusive jurisdiction to investigate offenses committed by
public officials and employees."
The concurrent jurisdiction of the Ombudsman refers to the conduct
of a preliminary investigation to determine if there is probable cause
to charge a public officer or employee with an offense, not to the
conduct of a purely administrative fact-finding investigation that does
not involve the determination of probable cause.32 The Truth
Commission is a purely fact-finding body that does not determine the
existence of probable cause. There is no accused or even a suspect
before the Truth Commission, which merely conducts a general
inquiry on reported cases of graft and corruption. No one will even be
under custodial investigation before the Truth Commission.33Thus, the
claim that the Truth Commission is usurping the investigatory power
of the Ombudsman, or of any other government official, has no basis
whatsoever.
In criminal fact-finding investigations, the law expressly vests in
the Philippine National Police (PNP) and the National Bureau of
Investigation (NBI) investigatory powers. Section 24 of Republic Act
No. 697534 provides:
Section 24. Powers and Functions – The PNP shall have the
following powers and duties:
(a) x x x
xxx
(c) Investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice, and assist in
their prosecution;
x x x. (Emphasis supplied)
Section 1 of Republic Act No. 157 also provides:
Section 1. There is hereby created a Bureau of Investigation under
the Department of Justice which shall have the following functions:
(a) To undertake investigation of crimes and other
offenses against the laws of the Philippines, upon its own
initiative and as public interest may require;
x x x. (Emphasis supplied)
The PNP and the NBI are under the control of the President.
Indisputably, the President can at any time direct the PNP and NBI,
whether singly, jointly or in coordination with other government
bodies, to investigate possible violations of penal laws, whether
committed by public officials or private individuals. To say that the
Ombudsman has the exclusive power to conduct fact-finding
investigations of crimes involving public officials and employees is to
immobilize our law-enforcement agencies and allow graft and
corruption to run riot. The fact-finding arm of the Department of
Justice (DOJ) to investigate crimes, whether committed by public or
private parties, is the NBI.35 The DOJ Proper does not conduct fact-
finding investigations of crimes, but only preliminary investigations.
The Truth Commission
Has Subpoena Powers
Section 2 of EO 1 provides that the Truth Commission shall have all
the powers of an investigative body under Section 37, Chapter 9,
Book I of EO 292, which reads:
Sec. 37. Powers Incidental to Taking of Testimony. - When authority
to take testimony or receive evidence is conferred upon any
administrative officer or any non-judicial person, committee, or other
body, such authority shall include the power to administer oaths,
summon witnesses, and require the production of documents by
a subpoena duces tecum. (Emphasis supplied)
Section 2(e) of EO 1 confers on the Truth Commission the power to
"[i]nvite or subpoena witnesses and take their testimonies and for that
91
purpose, administer oaths or affirmation as the case may be." Thus,
the Truth Commission, a body authorized to take testimony, can
administer oaths and issue subpoena and subpoena duces
tecumpursuant to Section 37, Chapter 9, Book I of EO 292. In fact,
this power to administer oaths and to issue subpoena and subpoena
duces tecum is a power of every administrative fact-finding
investigative body created in the Executive, Legislative or Judicial
branch. Section 37, Chapter 9, Book I of EO 292 grants such power
to every fact-finding body so created.
The Truth Commission
Has No Contempt Powers
Section 9 of EO 1 provides:
Section 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or
who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection,
when required, shall be subject to administrative disciplinary action.
Any private person who does the same may be dealt with in
accordance with law.
There is no provision in EO 1 that gives the Truth Commission the
power to cite persons for contempt. As explained by Solicitor General
Jose Anselmo I. Cadiz, if the person who refuses to obey the
subpoena, take oath or give testimony is a public officer, he can be
charged with "defiance of a lawful order,"36 which should mean
insubordination37 if his superior had ordered him to obey the
subpoena of the Truth Commission. If the person is not a public
officer or employee, he can only be dealt with in accordance with law,
which should mean that the Truth Commission could file a petition
with the proper court to cite such private person in contempt pursuant
to Sections 138 and 939 of Rule 21 of the Rules of Court.
However, the mere fact that the Truth Commission, by itself, has no
coercive power to compel any one, whether a government employee
or a private individual, to testify before the Commission does not
invalidate the creation by the President, or by the Judiciary or
Legislature, of a purely administrative fact-finding investigative body.
There are witnesses who may voluntarily testify, and bring relevant
documents, before such fact-finding body. The fact-finding body may
even rely only on official records of the government. To require every
administrative fact-finding body to have coercive or contempt powers
is to invalidate all administrative fact-finding bodies created by the
Executive, Legislative and Judicial branches of government.
The Name "Truth Commission"
Cannot Invalidate EO 1
There is much ado about the words "Truth Commission" as the name
of the fact-finding body created under EO 1. There is no law or rule
prescribing how a fact-finding body should be named. In fact,
there is no law or rule prescribing how permanent government
commissions, offices, or entities should be named.40 There is also no
law or rule prohibiting the use of the words "Truth Commission"
as the name of a fact-finding body. Most fact-finding bodies are
named, either officially or unofficially, after the chairperson of such
body, which by itself, will not give any clue as to the nature, powers or
functions of the body. Thus, the name Feliciano Commission or Melo
Commission, by itself, does not indicate what the commission is all
about. Naming the present fact-finding body as the "Truth
Commission" is more descriptive than naming it the Davide
Commission after the name of its chairperson.
The name of a government commission, office or entity does not
determine its nature, powers or functions. The specific provisions of
the charter creating the commission, office or entity determine its
nature, powers or functions. The name of the commission, office or
entity is not important and may even be misleading. For example, the
term Ombudsman connotes a male official but no one in his right
mind will argue that a female cannot be an Ombudsman. In fact, the
present Ombudsman is not a man but a woman. In the private sector,
the name of a corporation may not even indicate what the corporation
is all about. Thus, Apple Corporation is not in the business of selling
apples or even oranges. An individual may be named Honesto but he
may be anything but honest. All this tells us that in determining
the nature, powers or functions of a commission, office or entity,
courts should not be fixated by its name but should examine
what it is tasked or empowered to do.
92
In any event, there is nothing inherently wrong in the words "Truth
Commission" as the name of a fact-finding body. The primary
purpose of every fact-finding body is to establish the facts. The facts
lead to, or even constitute, the truth. In essence, to establish the facts
is to establish the truth. Thus, the name "Truth Commission" is as
appropriate as the name "Fact-Finding Commission." If the name of
the commission created in EO 1 is changed to "Fact-Finding
Commission," the nature, powers and functions of the commission
will remain exactly the same. This simply shows that the name of the
commission created under EO 1 is not important, and any esoteric
discourse on the ramifications of the name "Truth Commission" is
merely an academic exercise. Of course, the name "Truth
Commission" is more appealing than the worn-out name "Fact-
Finding Commission." Courts, however, cannot invalidate a law or
executive issuance just because its draftsman has a flair for catchy
words and a disdain for trite ones. Under the law, a fact-finding
commission by any other name is a fact-finding commission.41
The Public Will Not Be Deceived that
Findings of Truth Commission Are Final
The fear that the public will automatically perceive the findings of the
Truth Commission as the "truth," and any subsequent contrary
findings by the Ombudsman or Sandiganbayan as the "untruth," is
misplaced. First, EO 1 is unequivocally clear that the findings of the
Truth Commission are neither final nor binding on the Ombudsman,
more so on the Sandiganbayan which is not even mentioned in EO 1.
No one reading EO 1 can possibly be deceived or misled that the
Ombudsman or the Sandiganbayan are bound by the findings of the
Truth Commission.
Second, even if the Truth Commission is renamed the "Fact-Finding
Commission," the same argument can also be raised — that the
public may automatically perceive the findings of the Fact-Finding
Commission as the unquestionable "facts," and any subsequent
contrary findings by the Ombudsman or Sandiganbayan as "non-
factual." This argument is bereft of merit because the public can
easily read and understand what EO 1 expressly says — that the
findings of the Truth Commission are not final or binding but merely
recommendatory.
Third, the Filipino people are familiar with the Agrava Board,42 a fact-
finding body that investigated the assassination of former Senator
Benigno S. Aquino, Jr. The people know that the findings of the
Agrava Board were not binding on the then Tanodbayan or the
Sandiganbayan. The Agrava Board recommended for prosecution 26
named individuals43 but the Tanodbayan charged 40 named
individuals44 before the Sandiganbayan. On the other hand, the
Sandiganbayan convicted only 16 of those charged by the
Tanodbayan and acquitted 20 of the accused.45
Fourth, as most Filipinos know, many persons who undergo
preliminary investigation and are charged for commission of crimes
are eventually acquitted by the trial courts, and even by the appellate
courts. In short, the fear that the public will be misled that the findings
of the Truth Commission is the unerring gospel truth is more
imagined than real.
EO 1 Does Not Violate
The Equal Protection Clause
Petitioners Lagman, et al. argue that EO 1 violates the equal
protection clause because the investigation of the Truth Commission
is limited to alleged acts of graft and corruption during the Arroyo
administration.
A reading of Section 17 of EO 1 readily shows that the Truth
Commission’s investigation is not limited to the Arroyo administration.
Section 17 of EO 1 provides:
Section 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be extended accordingly by
way of a supplemental Executive Order. (Emphasis supplied)
The President can expand the mandate of the Truth Commission to
investigate alleged graft and corruption cases of other past
administrations even as its primary task is to investigate the Arroyo
administration. EO 1 does not confine the mandate of the Truth
93
Commission solely to alleged acts of graft and corruption during the
Arroyo Administration.
Section 17 of EO 1 is the same as Section 2(b) of Executive Order
No. 1 dated 28 February 1986 issued by President Corazon Aquino
creating the Presidential Commission on Good Government (PCGG
Charter). Section 2(b) of the PCGG Charter provides:
Section 2. The Commission shall be charged with the task of
assisting the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates xxx.
(b) The investigation of such cases of graft and corruption as
the President may assign to the Commission from time to
time.
x x x x . (Emphasis supplied)
Thus, under Section 2(b) of the PCGG Charter, the President can
expand the investigation of the PCCG even as its primary task is to
recover the ill-gotten wealth of the Marcoses and their cronies. Both
EO 1 and the PCGG Charter have the same provisions on the scope
of their investigations. Both the Truth Commission and the PCGG are
primarily tasked to conduct specific investigations, with their
mandates subject to expansion by the President from time to time.
This Court has consistently upheld the constitutionality of the PCGG
Charter.46
Like Section 2(b) of the PCGG Charter, Section 17 of EO 1 merely
prioritizes the investigation of acts of graft and corruption that may
have taken place during the Arroyo administration. If time allows, the
President may extend the mandate of the Truth Commission to
investigate other administrations prior to the Arroyo administration.
The prioritization of such work or assignment does not violate the
equal protection clause because the prioritization is based on
reasonable grounds.
First, the prescriptive period for the most serious acts of graft and
corruption under the Revised Penal Code is 20 years,47 15 years for
offenses punishable under the Anti-Graft and Corrupt Practices
Act,48 and 12 years for offenses punishable under special penal laws
that do not expressly provide for prescriptive periods.49 Any
investigation will have to focus on alleged acts of graft and corruption
within the last 20 years, almost half of which or 9 years is under the
Arroyo administration.
While it is true that the prescriptive period is counted from the time of
discovery of the offense, the "reported cases"50 of "large scale
corruption"51 involving "third level public officers and higher,"52 which
the Truth Commission will investigate, have already been widely
reported in media, and many of these reported cases have even
been investigated by the House of Representatives or the Senate.
Thus, the prescriptive periods of these "reported cases" of "large
scale corruption" may have already began to run since these
anomalies are publicly known and may be deemed already
discovered.53 These prescriptive periods refer to the criminal acts of
public officials under penal laws, and not to the recovery of ill-gotten
wealth which under the Constitution is imprescriptible.54
Second, the Marcos, Ramos and Estrada administrations were
already investigated by their successor administrations. This alone is
incontrovertible proof that the Arroyo administration is not being
singled out for investigation or prosecution.
Third, all the past Presidents, with the exception of Presidents
Ramos, Estrada and Arroyo, are already dead. The possible
witnesses to alleged acts of graft and corruption during the
Presidencies of the deceased presidents may also be dead or
unavailable. In fact, the only living President whose administration
has not been investigated by its successor administration is President
Arroyo.
Fourth, the more recent the alleged acts of graft and corruption, the
more readily available will be the witnesses, and the more easily the
witnesses can recall with accuracy the relevant events. Inaction over
time means the loss not only of witnesses but also of material
documents, not to mention the loss of public interest.
94
Fifth, the 29-month time limit given to the Truth Commission prevents
it from investigating other past administrations.55 There is also the
constraint on the enormous resources needed to investigate other
past administrations. Just identifying the transactions, locating
relevant documents, and looking for witnesses would require a whole
bureaucracy.
These are not only reasonable but also compelling grounds for the
Truth Commission to prioritize the investigation of the Arroyo
administration. To prioritize based on reasonable and even
compelling grounds is not to discriminate, but to act sensibly
and responsibly.
In any event, there is no violation of the equal protection clause just
because the authorities focus their investigation or prosecution on
one particular alleged law-breaker, for surely a person accused of
robbery cannot raise as a defense that other robbers like him all over
the country are not being prosecuted.56 By the very nature of an
investigation or prosecution, there must be a focus on particular act
or acts of a person or a group of persons.
Indeed, almost every fact-finding body focuses its investigation on a
specific subject matter ─ whether it be a specific act, incident, event,
situation, condition, person or group of persons. This specific focus
results from the nature of a fact-finding investigation, which is a
necessary and proper response to a specific compelling act, incident,
event, situation, or condition involving a person or group of persons.
Thus, the fact-finding commissions created under the previous Arroyo
administration had specific focus: the Feliciano Commission focused
on the Oakwood mutiny, the Melo Commission focused on extra-
judicial killings, and the Zeñarosa Commission focused on private
armies.
Significantly, the PCGG Charter even specifies the persons to be
investigated for the recovery of ill-gotten wealth. Thus, Section 2(a) of
the PCGG Charter provides:
Section 2. The Commission shall be charged with the task of
assisting the President in regard to the following matters:
 (a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether located
in the Philippines or abroad, including the takeover or
sequestration of all business enterprises and entities owned
or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public
office and/or using their powers, authority, influence,
connections or relationship.
(b) x x x . (Emphasis supplied)
The PCGG Charter has survived all constitutional attacks before this
Court, including the claim that its Section 2(a) violates the equal
protection clause. In Virata v. Sandiganbayan,57 this Court
categorically ruled that the PCGG Charter "does not violate the equal
protection clause and is not a bill of attainder or an ex post facto
law."58
This specific focus of fact-finding investigations is also true in the
United States. Thus, the Roberts Commission59focused on the Pearl
Harbor attack, the Warren Commission60 focused on the
assassination of President John F. Kennedy, and the 9/11
Commission61 focused on the 11 September 2001 terrorist attacks on
the United States. These fact-finding commissions were created with
specific focus to assist the U.S. President and Congress in crafting
executive and legislative responses to specific acts or events of grave
national importance. Clearly, fact-finding investigations by their very
nature must have a specific focus.
Graft and corruption cases before the Arroyo administration have
already been investigated by the previous administrations. President
Corazon Aquino created the Presidential Commission on Good
Government to recover the ill-gotten wealth of the Marcoses and their
cronies.62 President Joseph Estrada created the Saguisag
Commission to investigate the Philippine Centennial projects of
President Fidel Ramos.63 The glaring acts of corruption during the
Estrada administration have already been investigated resulting in the
conviction of President Estrada for plunder. Thus, it stands to reason
that the Truth Commission should give priority to the alleged acts of
graft and corruption during the Arroyo administration.
95
The majority opinion claims that EO 1 violates the equal protection
clause because the Arroyo administration belongs to a class of past
administrations and the other past administrations are not included in
the investigation of the Truth Commission. Thus, the majority opinion
states:
In this regard, it must be borne in mind that the Arroyo administration
is but just a member of a class, that is, a class of past
administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which
the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
xxx
x x x The PTC [Philippine Truth Commission], to be true to its
mandate of searching the truth, must not exclude the other past
administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization
is permitted, it should not be arbitrary lest it be struck down for being
unconstitutional.
xxx
x x x To exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the petitioners'
lament that the subject executive order is only an "adventure in
partisan hostility." x x x.
xxx
To reiterate, in order for a classification to meet the
requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "Such a classification
must not be based on existing circumstances only, or so constituted
as to preclude additions to the number included within a class, but
must be of such a nature as to embrace all those who may hereafter
be in similar circumstances and conditions. Furthermore, all who are
in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those
of the members of the class must be brought under the influence of
the law and treated by it in the same way as are the members of the
class." (Emphasis supplied)
The majority opinion goes on to suggest that EO 1 could be amended
"to include the earlier past administrations" to allow it "to pass the
test of reasonableness and not be an affront to the Constitution."
The majority opinion’s reasoning is specious, illogical, impractical,
impossible to comply, and contrary to the Constitution and well-
settled jurisprudence. To require that "earlier past administrations"
must also be included in the investigation of the Truth Commission,
with the Truth Commission expressly empowered "to
investigate allpast administrations," before there can be a valid
investigation of the Arroyo administration under the equal protection
clause, is to prevent absolutely the investigation of the Arroyo
administration under any circumstance.
While the majority opinion admits that there can be "reasonable
prioritization" of past administrations to be investigated, it not only
fails to explain how such reasonable prioritization can be made, it
also proceeds to strike down EO 1 for prioritizing the Arroyo
administration in the investigation of the Truth Commission. And while
admitting that there can be a valid classification based on substantial
distinctions, the majority opinion inexplicably makes any substantial
distinction immaterial by stating that "[t]o exclude the earlier
administrations in the guise of "substantial distinctions" would
only confirm the petitioners' lament that the subject executive
order is only an 'adventure in partisan hostility.'"
The "earlier past administrations" prior to the Arroyo administration
cover the Presidencies of Emilio Aguinaldo, Manuel Quezon, Jose
Laurel, Sergio Osmeña, Manuel Roxas, Elpidio Quirino, Ramon
Magsaysay, Carlos Garcia, Diosdado Macapagal, Ferdinand Marcos,
Corazon Aquino, Fidel Ramos, and Joseph Estrada, a period
spanning 102 years or more than a century. All these administrations,
plus the 9-year Arroyo administration, already constitute the universe
of all past administrations, covering a total period of 111 years. All
these "earlier past administrations" cannot constitute just one class
of administrations because if they were to constitute just one class,
96
then there would be no other class of administrations. It is like saying
that since all citizens are human beings, then all citizens belong to
just one class and you cannot classify them as disabled,
impoverished, marginalized, illiterate, peasants, farmers, minors,
adults or seniors.
Classifying the "earlier past administrations" in the last 111 years
as just one class is not germane to the purpose of investigating
possible acts of graft and corruption. There are prescriptive periods to
prosecute crimes. There are administrations that have already been
investigated by their successor administrations. There are also
administrations that have been subjected to several Congressional
investigations for alleged large-scale anomalies. There are past
Presidents, and the officials in their administrations, who are all dead.
There are past Presidents who are dead but some of the officials in
their administrations are still alive. Thus, all the "earlier past
administrations" cannot be classified as just one single class − "a
class of past administrations" ‒ because they are not all similarly
situated.
On the other hand, just because the Presidents and officials of
"earlier past administrations" are now all dead, or the prescriptive
periods under the penal laws have all prescribed, does not mean that
there can no longer be any investigation of these officials. The State's
right to recover the ill-gotten wealth of these officials
is imprescriptible.64 Section 15, Article XI of the 1987 Constitution
provides:
Section 15. The right of the State to recover properties unlawfully
acquired by public officials or employees, from them or from their
nominees or transferees, shall not be barred by prescription,
laches or estoppel. (Emphasis supplied)
Legally and morally, any ill-gotten wealth since the Presidency of
Gen. Emilio Aguinaldo can still be recovered by the State. Thus, if
the Truth Commission is required to investigate "earlier past
administrations" that could still be legally investigated, the Truth
Commission may have to start with the Presidency of Gen.
Emilio Aguinaldo.
A fact-finding investigation of "earlier past administrations,"
spanning 111 years punctuated by two world wars, a war for
independence, and several rebellions ─ would obviously be an
impossible task to undertake for an ad hoc body like the Truth
Commission. To insist that "earlier past administrations" must also
be investigated by the Truth Commission, together with the Arroyo
administration, is utterly bereft of any reasonable basis other than to
prevent absolutely the investigation of the Arroyo administration. No
nation on this planet has even attempted to assign to one ad-
hoc fact-finding body the investigation of all its senior public officials
in the past 100 years.
The majority opinion’s overriding thesis − that "earlier past
administrations" belong to only one class and they must all be
included in the investigation of the Truth Commission, with the Truth
Commission expressly empowered "to investigate all past
administrations" − is even the wrong assertion of discrimination that
is violative of the equal protection clause. The logical and correct
assertion of a violation of the equal protection clause is that the
Arroyo administration is being investigated for possible acts of graft
and corruption while other past administrations similarly situated were
not.
Thus, in the leading case of United States v. Armstrong,65 decided in
1996, the U.S. Supreme Court ruled that "to establish a discrimination
effect in a race case, the claimant must show that similarly situated
individuals of a different race were not prosecuted."66 Applied to the
present petitions, petitioners must establish that similarly situated
officials of other past administrations were not investigated. However,
the incontrovertible and glaring fact is that the Marcoses and their
cronies were investigated and prosecuted by the PCGG, President
Fidel Ramos and his officials in the Centennial projects were
investigated by the Saguisag Commission, and President Joseph
Estrada was investigated, prosecuted and convicted of plunder under
the Arroyo administration. Indisputably, the Arroyo administration is
not being singled out for investigation or prosecution because other
past administrations and their officials were also investigated or
prosecuted.
In United States v. Armstrong, the U.S. Supreme Court further stated
that "[a] selective-prosecution claim asks a court to exercise judicial
97
power over a "special province" of the Executive,"67 citing Hecker v.
Chaney68 which held that a decision whether or not to indict "has long
been regarded
as the special province of the Executive Branch, inasmuch it is the
Executive who is charged by the Constitution to ‘take Care that the
Laws be faithfully executed.’"69 These U.S. cases already involved the
prosecution of cases before the grand jury or the courts, well past the
administrative fact-finding investigative phase.
In the present case, no one has been charged before the prosecutor
or the courts. What petitioners want this Court to do is invalidate a
mere administrative fact-finding investigation by the Executive
branch, an investigative phase prior to preliminary investigation.
Clearly, if courts cannot exercise the Executive’s "special province" to
decide whether or not to indict, which is the equivalent of
determination of probable cause, with greater reason courts cannot
exercise the Executive’s "special province" to decide what or what not
to investigate for administrative fact-finding purposes.
For this Court to exercise this "special province" of the President is to
encroach on the exclusive domain of the Executive to execute the law
in blatant violation of the finely crafted constitutional separation of
power. Any unwarranted intrusion by this Court into the exclusive
domain of the Executive or Legislative branch disrupts the separation
of power among the three co-equal branches and ultimately invites
re-balancing measures from the Executive or Legislative branch.
A claim of selective prosecution that violates the equal protection
clause can be raised only by the party adversely affected by the
discriminatory act. In Nunez v. Sandiganbayan,70 this Court declared:
‘x x x Those adversely affected may under the circumstances invoke
the equal protection clause only if they can show that the
governmental act assailed, far from being inspired by the attainment
of the common weal was prompted by the spirit of hostility, or at the
very least, discrimination that finds no support in reason.’ x x x.
(Emphasis supplied)
Here, petitioners do not claim to be adversely affected by the alleged
selective prosecution under EO 1. Even in the absence of such a
claim by the proper party, the majority opinion strikes down EO 1 as
discriminatory and thus violative of the equal protection clause. This
is a gratuitous act to those who are not before this Court, a
discriminatory exception to the rule that only those "adversely
affected" by an alleged selective prosecution can invoke the equal
protection clause. Ironically, such discriminatory exception is a
violation of the equal protection clause. In short, the ruling of the
majority is in itself a violation of the equal protection clause, the very
constitutional guarantee that it seeks to enforce.
The majority opinion’s requirement that "earlier past
administrations" in the last 111 years should be included in the
investigation of the Truth Commission to comply with the equal
protection clause is a recipe for all criminals to escape prosecution.
This requirement is like saying that before a person can be charged
with estafa, the prosecution must also charge all persons who in the
past may have committed estafa in the country. Since it is impossible
for the prosecution to charge all those who in the past may have
committed estafa in the country, then it becomes impossible to
prosecute anyone for estafa.
This Court has categorically rejected this specious reasoning and
false invocation of the equal protection clause in People v. dela
Piedra,71 where the Court emphatically ruled:
The prosecution of one guilty person while others equally guilty are
not prosecuted, however, is not, by itself, a denial of the equal
protection of the laws. x x x
x x x The mere allegation that appellant, a Cebuana, was charged
with the commission of a crime, while a Zamboangueña, the guilty
party in appellant’s eyes, was not, is insufficient to support a
conclusion that the prosecution officers denied appellant equal
protection of the laws.
There is also common sense practicality in sustaining appellant’s
prosecution.
98
While all persons accused of crime are to be treated on a basis of
equality before the law, it does not follow that they are to be protected
in the commission of crime. It would be unconscionable, for instance,
to excuse a defendant guilty of murder because others have
murdered with impunity. The remedy for unequal enforcement of the
law in such instances does not lie in the exoneration of the guilty at
the expense of society . . . . Protection of the law will be extended to
all persons equally in the pursuit of their lawful occupations, but no
person has the right to demand protection of the law in the
commission of a crime. (People v. Montgomery, 117 P.2d 437 [1941])
Likewise,
[i]f the failure of prosecutors to enforce the criminal laws as to some
persons should be converted into a defense for others charged with
crime, the result would be that the trial of the district attorney for
nonfeasance would become an issue in the trial of many persons
charged with heinous crimes and the enforcement of law would suffer
a complete breakdown (State v. Hicks, 325 P.2d 794
[1958]).72 (Emphasis supplied)
The Court has reiterated this "common sense" ruling in People v.
Dumlao73 and in Santos v. People,74 for to hold otherwise is utter
nonsense as it means effectively granting immunity to all criminals.
Indeed, it is a basic statutory principle that non-observance of a law
by disuse is not a ground to escape prosecution for violation of a law.
Article 7 of Civil Code expressly provides:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
x x x. (Emphasis supplied)
A person investigated or prosecuted for a possible crime cannot raise
the defense that he is being singled out because others who may
have committed the same crime are not being investigated or
prosecuted. Such person cannot even raise the defense that after
several decades he is the first and only one being investigated
or prosecuted for a specific crime. The law expressly states that
disuse of a law, or custom or practice allowing violation of a law, will
never justify the violation of the law or its non-observance.
A fact-finding investigation in the Executive or Judicial branch, even if
limited to specific government officials ─ whether incumbent, resigned
or retired ─ does not violate the equal protection clause. If an
anomaly is reported in a government transaction and a fact-finding
investigation is conducted, the investigation by necessity must focus
on the public officials involved in the transaction. It is ridiculous for
anyone to ask this Court to stop the investigation of such public
officials on the ground that past public officials of the same rank, who
may have been involved in similar anomalous transactions in the
past, are not being investigated by the same fact-finding body. To
uphold such a laughable claim is to grant immunity to all criminals,
throwing out of the window the constitutional principle that "[p]ublic
office is a public trust"75 and that "[p]ublic officials and employees
must at all times be accountable to the people."76
When the Constitution states that public officials are "at all times"
accountable to the people, it means at any time public officials can be
held to account by the people. Nonsensical claims, like the selective
prosecution invoked in People v. dela Piedra, are unavailing.
Impossible conditions, like requiring the investigation of "earlier past
administrations," are disallowed. All these flimsy and dilatory
excuses violate the clear command of the Constitution that public
officials are accountable to the people "at all times."
The majority opinion will also mean that the PCGG Charter − which
tasked the PCGG to recover the ill-gotten wealth of the Marcoses and
their cronies − violates the equal protection clause because the
PCCG Charter specifically mentions the Marcoses and their cronies.
The majority opinion reverses several decisions77 of this Court
upholding the constitutionality of the PCCG Charter, endangering
over two decades of hard work in recovering ill-gotten wealth.
Ominously, the majority opinion provides from hereon every
administration a cloak of immunity against any investigation by its
successor administration. This will institutionalize impunity in
transgressing anti-corruption and other penal laws. Sadly, the
99
majority opinion makes it impossible to bring good governance to our
government.
The Truth Commission is only a fact-finding body to provide the
President with facts so that he can understand what happened in
certain government transactions during the previous administration.
There is no preliminary investigation yet and the Truth Commission
will never conduct one. No one is even being charged before the
prosecutor or the Ombudsman. This Court has consistently refused to
interfere in the determination by the prosecutor of the existence of
probable cause in a preliminary investigation.78 With more reason
should this Court refuse to interfere in the purely fact-finding work of
the Truth Commission, which will not even determine whether there is
probable cause to charge any person of a crime.
Before the President executes the law, he has the right, and even the
duty, to know the facts to assure himself and the public that he is
correctly executing the law. This Court has no power to prevent the
President from knowing the facts to understand certain government
transactions in the Executive branch, transactions that may need to
be reviewed, revived, corrected, terminated or completed. If this
Court can do so, then it can also prevent the House of
Representatives or the Senate from conducting an investigation, in
aid of legislation, on the financial transactions of the Arroyo
administration, on the ground of violation of the equal protection clause. Unless,
of course, the House or the Senate attempts to do the impossible ― conduct an
investigation on the financial transactions of “earlier past administrations"
since the Presidency of General Emilio Aguinaldo. Indeed, under the majority
opinion, neither the House nor the Senate can conduct any investigation on any
administration, past or present, if "earlier past administrations" are not included
in the legislative investigation.
In short, the majority opinion’s requirements that EO 1 should also
include "earlier past administrations," with the Truth Commission
empowered "to investigate all past administrations," to comply
with the equal protection clause, is a requirement that is not only
illogical and impossible to comply, it also allows the impunity to
commit graft and corruption and other crimes under our penal laws.
The majority opinion completely ignores the constitutional principle
that public office is a public trust and that public officials are at all
times accountable to the people.
 A Final Word
The incumbent President was overwhelmingly elected by the Filipino
people in the 10 May 2010 elections based on his announced
program of eliminating graft and corruption in government. As the
Solicitor General explains it, the incumbent President has pledged to
the electorate that the elimination of graft and corruption will start with
the investigation and prosecution of those who may have committed
large-scale corruption in the previous administration.79 During the
election campaign, the incumbent President identified graft and
corruption as the major cause of poverty in the country as depicted in
his campaign theme "kung walang corrupt, walang mahirap." It was
largely on this campaign pledge to eliminate graft and corruption in
government that the electorate overwhelmingly voted for the
incumbent President. The Filipino people do not want to remain
forever at the bottom third of 178 countries ranked in terms of
governments free from the scourge of corruption.80
Neither the Constitution nor any existing law prevents the incumbent
President from redeeming his campaign pledge to the Filipino people.
In fact, the incumbent President’s campaign pledge is merely a
reiteration of the basic State policy, enshrined in Section 27, Article II
of the Constitution, that:
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft
and corruption. (Emphasis supplied)
The incumbent President’s campaign pledge also reiterates the
constitutional principle that "[p]ublic office is a public trust"81 and that
"[p]ublic officers and employees must at all times be accountable to
the people."82
This Court, in striking down EO 1 creating the Truth Commission,
overrules the manifest will of the Filipino people to start the difficult
task of putting an end to graft and corruption in government, denies
the President his basic constitutional power to determine the facts in
his faithful execution of the law, and suppresses whatever truth may
come out in the purely fact-finding investigation of the Truth
Commission. This Court, in invoking the equal protection clause to
100
strike down a purely fact-finding investigation, grants immunity to
those who violate anti-corruption laws and other penal laws, renders
meaningless the constitutional principle that public office is a public
trust, and makes public officials unaccountable to the people at any
time.
Ironically, this Court, and even subordinates of the President in the
Executive branch, routinely create all year round fact-finding bodies
to investigate all kinds of complaints against officials and employees
in the Judiciary or the Executive branch, as the case may be. The
previous President created through executive issuances three purely
fact-finding commissions similar to the Truth Commission. Yet the
incumbent President, the only official mandated by the Constitution to
execute faithfully the law, is now denied by this Court the power to
create the purely fact-finding Truth Commission.
History will record the ruling today of the Court’s majority as a severe
case of judicial overreach that made the incumbent President a
diminished Executive in an affront to a co-equal branch of
government, crippled our already challenged justice system, and
crushed the hopes of the long suffering Filipino people for an end to
graft and corruption in government.
Accordingly, I vote to DISMISS the petitions.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1
Also known as the Administrative Code of 1987. One of EO
1’s WHEREAS clauses reads: "WHEREAS, Book III, Chapter
10, Section 31 of Executive Order No. 292, otherwise known
as the Revised Administrative Code of the Philippines, gives
the President the continuing authority to reorganize the Office
of the President."
2
Domingo v. Zamora, 445 Phil. 7, 13 (2003).
3
Emphasis supplied.
4
Emphasis supplied. President Aquino took his oath in
Filipino.
5
Rodriguez, et al. v. Santos Diaz, et al., 119 Phil. 723, 727-
728 (1964).
6
TSN, 7 September 2010, pp. 56-57.
7
No. L-29274, 27 November 1975, 68 SCRA 99, 104.
8
Section 31, Chapter 10, Title III, Book III of EO 292, quoted
on page 2.
9
Section 22, Chapter 8, Title II, Book III of EO 292 reads:
Section 22. Office of the President Proper. (1) The
Office of the President Proper shall consist of the
Private Office, the Executive Office, the Common
Staff Support System, and the Presidential Special
Assistants/Advisers System;
(2) The Executive Office refers to the Offices of the
Executive Secretary, Deputy Executive Secretaries
and Assistant Executive Secretaries;
(3) The Common Staff Support System embraces the
offices or units under the general categories of
development and management, general government
administration and internal administration; and
(4) The Presidential Special Assistants/Advisers
System includes such special assistants or advisers
as may be needed by the President." (Emphasis
supplied)
10
Section 22(4), Id.
101
11
Section 47(2), Chapter 6, Book V of EO 292 provides:
Section 47. Disciplinary Jurisdiction. -
xxx
(2) The Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide
matters involving disciplinary action against officers
and employees under their jurisdiction. x x x.
(Emphasis supplied)
12
Paragraph 1 of PD 1416, as amended, provides:
1. The President of the Philippines shall have
continuing authority to reorganize the National
Government. In exercising this authority, the
President shall be guided by generally acceptable
principles of good government and responsive
national development, including but not limited to the
following guidelines for a more efficient, effective,
economical and development-oriented governmental
framework:
(a) More effective planning, implementation,
and review functions;
(b) Greater decentralization and
responsiveness in the decision-making
process;
(c) Further minimization, if not elimination, of
duplication or overlapping of purposes,
functions, activities, and programs;
(d) Further development of as standardized as
possible ministerial, sub-ministerial and
corporate organizational structures;
 (e) Further development of the regionalization
process; and
(f) Further rationalization of the functions of
and administrative relationship among
government entities.
For purposes of this Decree, the coverage of the
continuing authority of the President to reorganize
shall be interpreted to encompass all agencies,
entities, instrumentalities, and units of the National
Government, including all government-owned or
controlled corporations, as well as the entire range of
the powers, functions, authorities, administrative
relationships, and related aspects pertaining to these
agencies, entities, instrumentalities, and units.
2. For this purpose, the President may, at his
discretion, take the following actions:
(a) Group, coordinate, consolidate or integrate
departments, bureaus, offices, agencies,
instrumentalities and functions of the
government;
(b) Abolish departments, offices, agencies or
functions which may not be necessary, or
create those which are necessary, for the
efficient conduct of government functions
services and activities;
(c) Transfer functions, appropriations,
equipment, properties, records and personnel
from one department, bureau, office, agency
or instrumentality to another;
(d) Create, classify, combine, split, and
abolish positions;
102
(e) Standardize salaries, materials and
equipment;
(f) Create, abolish, group, consolidate, merge,
or integrate entities, agencies,
instrumentalities, and units of the National
Government, as well as expand, amend,
change, or otherwise modify their powers,
functions and authorities, including, with
respect to government-owned or controlled
corporations, their corporate life,
capitalization, and other relevant aspects of
their charters; and
(g) Take such other related actions as may be
necessary to carry out the purposes and
objectives of this Decree. (Emphasis supplied)
13
Paragraph 1 (c) and (e), PD 1416, as amended.
14
The clause states: "WHEREAS, the transition towards the
parliamentary form of government will necessitate flexibility in
the organization of the national government."
15
Aurillo v. Rabi, 441 Phil. 117 (2002); Drilon v. Lim, G.R. No.
112497, 4 August 1994, 235 SCRA 135; Mondano v. Silvosa,
etc. et al., 97 Phil. 143 (1955).
16
Section 29(1), Article VI, 1987 Constitution.
17
Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform, G.R. No. 78742, 14 July 1989,
175 SCRA 343.
18
See Special Provision No. 2, General Appropriations Act of
2010 or Republic Act No. 9970.
19
TSN, 7 September 2010, p. 61.
 Doran v. Executive Judge Luczon, Jr., G.R. No. 151344, 26
20 29
Section 13(1), Article XI, Constitution.
September 2006, 503 SCRA 106.
30
G.R. No. 159747, 13 April 2004, 427 SCRA 46.
21
Id.
31
Id. at 70.
22
G.R. No. 179830, 3 December 2009, 606 SCRA 554,
citing Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30 32
Id.
November 2006, 509 SCRA 332.
33
People vs. Morial, 415 Phil. 310 (2001).
23
Id. at 570-571.
An Act Establishing The Philippine National Police Under A
34
24
Section 65, Chapter 13, Book IV of EO 292 merely Reorganized Department of Interior and Local Government
provides: And For Other Purposes. Also known as the Philippine
National Police Law or the Department of Interior and Local
Section 65. Approval of other types of Government Government Act of 1990.
Contracts. — All other types of government contracts
which are not within the coverage of this Chapter 35
Section 3, Chapter I, Title III, Book IV of EO 292 provides:
shall, in the absence of a special provision, be
executed with the approval of the Secretary or by the Section 3. Powers and Functions. - To accomplish its
head of the bureau or office having control of the mandate, the Department (DOJ) shall have the
appropriation against which the contract would create following powers and functions:
a charge. Such contracts shall be processed and
approved in accordance with existing laws, rules and
(1) x x x
regulations.
(2) Investigate the commission of crimes, prosecute
25
http://www.mb.com.ph/node/270641/ombud, accessed on
offenders and administer the probation and correction
19 November 2010.
system;
26
Section 1, Rule 112, Rules of Court.
x x x.
"An Act Providing for the Functional and Structural
27
36
TSN, 28 September 2010, pp. 41-42.
Organization of the Office of the Ombudsman, and for Other
Purposes." Also known as "The Ombudsman Act of 1989." 37
Section 46(25), Chapter 7, Book V, EO 292.
28
Republic Act No. 8249, entitled "An Act Further Defining the
Jurisdiction of the Sandiganbayan, Amending For the
38
Section 1, Rule 21 of the Rules of Court provides:
Purpose Presidential Decree No. 1606, as Amended,
Providing Funds Therefore, and For Other Purposes." SEC. 1. Subpoena and Subpoena duces tecum. -
Approved on 5 February 1997. Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or trial of an

103
 action, or at any investigation conducted by
competent authority, or for the taking of his
deposition. It may also require him to bring with him
any books, documents, or other things under his
control, in which case it is called a subpoena duces
46
Virata v. Sandiganbayan, G.R. No. 86926, 15 October
1991, 202 SCRA 680; PCGG v. Peña, 293 Phil. 93 (1988);
and Baseco v. PCGG, 234 Phil. 180 (1987).
Article 90, in relation to Articles 211-A and 217, of the
47

tecum. (Emphasis supplied) Revised Penal Code.

39
Section 9, Rule 21 of the Rules of Court provides: 48
Section 11, RA No. 3019.

SEC. 9. Contempt. Failure by any person without 49

Section 1, Act No. 3326.
adequate cause to obey a subpoena served upon him
shall be deemed a contempt of court from which the 50
Section 2, EO 1.
subpoena is issued. If the subpoena was not issued
by a court, the disobedience thereto shall be 51
Section 2(b), EO 1.
punished in accordance with the applicable law or
Rule. (Emphasis supplied) 52
Id.
40
In sharp contrast, Section 26(1), Article VI of the
Constitution provides: "Every bill passed by the Congress
53
See People v. Duque, G.R. No. 100285, 13 August 1992,
shall embrace only one subject which shall be expressed in 212 SCRA 607.
the title thereof." Thus, the title of a bill must express the
subject of the bill.
54
Section 15, Article XI, Constitution.

41
With apologies to William Shakespeare. These are the lines
55
Section 14 of EO 1 provides that "the Commission shall
in Romeo and Juliet: "What’s in a name? That which we call a accomplish its mission on or before December 31, 2012."
rose by any other name would smell as sweet."
56
In People v. dela Piedra, 403 Phil. 31, 54 (2001), the Court
42
Created by Presidential Decree No. 1886 dated 14 October stated, "The prosecution of one guilty person while others
1983. equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws."
43
The Majority Opinion of the Agrava Board recommended for
prosecution 26 named individuals, including Gen. Fabian Ver.
57
G.R. No. 86926, 15 October 1991, 202 SCRA 680.
The Minority Opinion of Chairperson Corazon Agrava
recommended for prosecution only 7 named individuals, 58
Id. at 698. (Emphasis supplied)
excluding Gen. Ver.
59
Created by President Franklin Roosevelt.
44
Excluding those charged as "John Does."
60
Created by President Lyndon Johnson.
45
One of the accused died during the trial and three remained
at large. 61
Created through law by the U.S. Congress.

104
62
Executive Order No. 1, dated 28 February 1986. 69
Id. at 832.

63
Administrative Order No. 53 – Creating an Ad-hoc and 70
197 Phil. 407, 423 (1982). This ruling was reiterated in City
Independent Citizens’ Committee to Investigate All the Facts of Manila v. Laguio, 495 Phil. 289 (2005); Mejia v. Pamaran,
and Circumstances Surrounding Philippine Centennial 243 Phil. 600 (1998); Bautista v. Juinio, 212 Phil. 307 (1984);
Projects, Including its Component Activities, dated 24 and Calubaquib v. Sandiganbayan, 202 Phil. 817 (1982).
February 1999.
71
403 Phil. 31 (2001).
64
Even prior to the 1987 Constitution, public officials could not
acquire ownership of their ill-gotten wealth by prescription. 72
Id. at 54-56.
Section 11 of Republic Act No. 1379, or the Law on Forfeiture
of Ill-Gotten Wealth enacted on 18 June 1956, provides: 73
G.R. No. 168918, 2 March 2009, 580 SCRA 409.

Section 11. Laws on prescription. — The laws 74

G.R. No. 173176, 26 August 2008, 563 SCRA 341.
concerning acquisitive prescription and limitation of
actions cannot be invoked by, nor shall they benefit 75
Section 1, Article XI, Constitution.
the respondent, in respect of any property unlawfully
acquired by him. 76
Id.
Under Article 1133 of the New Civil Code, "[m]ovables
possessed through a crime can never be acquired
77
Supra, note 46.
through prescription by the offender." And under
Article 1956 of the Spanish Civil Code of 1889,
78
See Spouses Aduan v. Levi Chong, G.R. No. 172796, 13
"ownership of personal property stolen or taken by July 2009, 592 SCRA 508; UCPB v. Looyuko, G.R. No.
robbery cannot be acquired by prescription by the 156337, 28 September 2007, 534 SCRA 322; First Women’s
thief or robber, or his accomplices, or accessories, Credit Corporation v. Perez, G.R. No. 169026, 15 June 2006,
unless the crime or misdemeanor or the penalty 490 SCRA 774; and Dupasquier v. Court of Appeals, 403
therefor and the action to enforce the civil liability Phil. 10 (2001).
arising from the crime or misdemeanor are barred by
prescription." 79
Memorandum for Respondents, p. 91.

65
517 U.S. 456, decided 13 May 1996. The U.S. Supreme 80
The 2010 Transparency International Corruption Index
Court reiterated this ruling in United States v. Bass, 536 U.S. ranks the Philippines at 134 out of 178 countries. See
862 (2002), a per curiam decision. http:/www.transparency.org/policy_research/surveys_indices/
cpi/2010/results, accessed on 13 November 2010.
66
517 U.S. 456, 465.
81
Section 1, Article XI, Constitution.
67
Id. at 464.
82
Id.
68
470 U.S. 821 (1985).

105

The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO MORALES, J.:
Assailed for being unconstitutional in the present consolidated cases
is Executive Order (EO) No. 1 of July 30, 2010 that created the
Philippine Truth Commission of 2010 (Truth Commission).
In issue is whether EO No. 1 violates the Constitution in three
ways, viz., (i) for usurping the power of Congress to create public
office and appropriate public funds, (ii) for intruding into the
independence of the Office of the Ombudsman, and (iii) for infringing
on the equal protection clause with its limited scope of investigation.
The ponencia submits the following findings and conclusions which
have been synthesized:
1. The Truth Commission is an ad hoc body formed under the
Office of the President. It has all the powers of an
1avvph!1
investigative body under the Administrative Code.1 It is a fact-
finding body, and not a quasi-judicial body;
2. The President has the power to create a new office like the
Truth Commission. The power inheres in his powers as Chief
Executive and springs from the constitutional duty to faithfully
execute the laws.2 Otherwise stated, the President has the
power to conduct investigations to aid him in ensuring that
laws are faithfully executed. It does not emanate from the
President’s power of control under the Constitution,3 nor by
virtue of the power to reorganize under the Administrative
Code4 which pertains to certain modifications of existing
offices, nor by authority of a stale law5 governing
reorganization of the national government;
106
3. There is no transgression of the legislative power to
appropriate public funds since what is involved is only an
allotment or allocation of existing funds that have already
been appropriated and which shall equally be subject to
auditing rules;
4. The Truth Commission does not duplicate, supersede or
erode the powers and functions of the Office of the
Ombudsman and the Department of Justice, since its
investigative function complements the two offices’
investigative power which is not exclusive. This investigative
function is not akin to the conduct of preliminary investigation
of certain cases, over which the Ombudsman exercises
primary jurisdiction; and
5. EO No. 1 violates the equal protection clause enshrined in
the Constitution,6 for it singles out the previous administration
as the sole subject of investigation.
Sustaining only the fifth ground – that the EO violates the equal
protection clause, the ponencia disposes:
WHEREFORE, the petition is (sic) GRANTED. Executive Order No. 1
is hereby declared UNCONSTITUTIONALinsofar as it is violative of
the equal protection clause of the Constitution.
As also prayed for, the respondents are enjoined from implementing
(sic) and operating the Truth Commission.7(underscoring supplied)
I submit that the petitions should be DISMISSED.
It bears noting at the outset that none of the petitioners properly
raises the issue of equal protection of the laws.
Petitioners in G.R. No. 193036, with legal standing as legislators,
cannot properly assert the equal protection claim of the previous
administration. While legislators have locus standi in certain cases,
their legal standing as such is recognized only insofar as the assailed
issuance affects their functions as legislators. In the absence of a
claim that the issuance in question violated the rights of petitioner-
legislators or impermissibly intruded into the domain of the
Legislature, they have no legal standing to institute the present action
in their capacity as members of Congress.8
No doubt, legislators are allowed to sue to question the validity of any
official action upon a claim of usurpation of legislative power.9 That is
why, not every time that a Senator or a Representative invokes the
power of judicial review, the Court automatically clothes them
with locus standi.10 The Court examines first, as the ponencia did, if
the petitioner raises an issue pertaining to an injury to Congress as
an institution or a derivative injury to members thereof,11 before
proceeding to resolve that particular issue.
The peculiarity of the locus standi of legislators necessarily confines
the adjudication of their petition only on matters that tend to impair
the exercise of their official functions. In one case, the Court ruled:
We find that among the petitioners, only Senator Pimentel has the
legal standing to file the instant suit. The other petitioners maintain
their standing as advocates and defenders of human rights, and as
citizens of the country. They have not shown, however, that they
have sustained or will sustain a direct injury from the non-transmittal
of the signed text of the Rome Statute to the Senate. Their contention
that they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is
intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens
against human rights violations and petitioners can always seek
redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that 'to the extent the
powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of
the powers of that institution. Thus, 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. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a treaty
entered into by the executive branch, in this case, the Rome Statute.
The petition seeks to order the executive branch to transmit the copy
107
of the treaty to the Senate to allow it to exercise such
authority. Senator Pimentel, as member of the institution,
certainly has the legal standing to assert such authority of the
Senate.12 (emphasis and underscoring supplied)
Breach of the equal protection clause, as presently raised by
petitioner-legislators on behalf of the Executive Department of the
immediate past administration, has nothing to do with the impairment
of the powers of Congress. Thus, with respect to the issue
in Pimentel, Jr. v. Exec. Secretary Ermita13 that did not involve any
impairment of the prerogatives of Congress, some Senators who
merely invoked their status as legislators were not granted standing.
Moreover, petitioner-legislators cannot take the cudgels for the
previous administration/s, unless they admit that they are maintaining
a confidential relation with it/them or acting as advocates of the rights
of a non-party who seeks access to their market or function.14
The petitioner in G.R. No. 192935, Louis Biraogo, does not raise
the issue of equal protection. His Memorandum mentions nothing
about equal protection clause.15 While the ponencia "finds reason
in Biraogo’s assertion that the petition covers matters of
transcendental importance,"16 not even his successful invocation of
transcendental importance can push the Court into resolving an issue
which he never raised in his petition.
On the foregoing score alone, the ponencia should not have dealt
with the issue of equal protection.17
Such barriers notwithstanding, the claim of breach of the equal
protection clause fails to hurdle the higher barrier of merit.
EQUAL PROTECTION OF THE LAWS
The ponencia holds that the previous administration has been denied
equal protection of the laws. To it, "[t]o restrict the scope of the
commission’s investigation to said particular administration
constitutes arbitrariness which the equal protection clause cannot
sanction."18
I find nothing arbitrary or unreasonable in the Truth Commission’s
defined scope of investigation.
In issues involving the equal protection clause, the test developed by
jurisprudence is that of reasonableness, which has four requisites:
(1) The classification rests on substantial distinctions; (2) It
is germane to the
purposes of the law; (3) It is not limited to existing conditions only;
and (4) It applies equally to all members of the same class.19
The classification rests on
substantial distinction
Reasonableness should consider the nature of the truth commission
which, as found by the ponencia, emanates from the power of the
President to conduct investigations to aid him in ensuring the faithful
execution of laws. The ponencia explains that the Executive
Department is given much leeway in ensuring that our laws are
faithfully executed. It adds:
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President
is entitled to know so that he can be properly advised and guided in
the performance of his duties relative to the execution and
enforcement of the laws of the land. And if history is to be
revisited, this was also the objective of the investigative bodies
created in the past like the PCAC, PCAPE, PARGO, the Feliciano
Commission, the Melo Commission, and the Zenarosa Commission.
There being no changes in the government structure, the Court is not
inclined to declare such executive power as non-existent just
because the direction of the political winds ha[s]
changed.20 (underscoring supplied)
This Court could not, in any way, determine or dictate what
information the President would be needing in fulfilling the duty
to ensure the faithful execution of laws on public
accountability. This sweeping directive of the ponencia to include all
past administrations in the probe tramples upon the prerogative of a
co-equal branch of government.
108
The group or class, from which to elicit the needed information, rests
on substantial distinction that sets the class apart.
Proximity and magnitude of incidents
Fairly recent events like the exigencies of transition and the reported
large-scale corruption explain the determined need to focus on no
other period but the tenure of the previous administration.
The proximity and magnitude of particular contemporary events like
the Oakwood mutiny and Maguindanao massacre similarly justified
the defined scope of the Feliciano Commission and the Zenarosa
Commission, respectively. As applied to the two commissions whose
objective the ponencia itself recognizes, the same test of
reasonableness rejects the absurd proposition to widen their
respective scopes to include all incidents of rebellion/mutiny and
election-related violence since the First Republic. Certainly, it is far
removed not just from the present time but also from logic and
experience.
This explained need for specific information removes the arbitrariness
from recognizing the previous administration as a distinct class of its
own.
Without a complete and definitive report
The ponencia brushes aside the proffered reasons for limiting the
investigation to the previous administration since "earlier
administrations have also been blemished by similar widespread
reports of impropriety."21
The ponencia employs the premise that previous administrations
have all been blemished by reports of improprieties similar22 to those
of the previous administration. Whether reports of such nature exist is
not borne by the pleadings submitted by petitioners who allege
unequal protection. Without any factual basis, the statement is
inconclusive and, at best, arguable.
Assuming arguendo that comparable reports of large-scale graft and
corruption existed during administrations previous to the last,
petitioners do not allege that information regarding these reported
activities is not yet available in the Executive Department. On the
contrary, respondents disclose that the Presidential Commission on
Good Government and the Saguisag Commission have already
probed into certain anomalous transactions that occurred during the
Marcos and Ramos administrations, respectively. During past
administrations, parallel functions had been discharged by the
Integrity Board, Presidential Complaints and Action Commission
(PCAC), Presidential Committee on Administrative Performance
Efficiency (PCAPE), and Presidential Anti-Graft Committee
(PAGCOM, later replaced by the Presidential Committee on
Administering Performance Efficiency), that were created by former
Presidents Quirino, Magsaysay, Garcia and Macapagal,
respectively.23 Not to mention the plunder committed during the
Estrada administration, the facts of which – already judicially
ascertained, at that – are contained in public records.
The Executive Department’s determination of the futility or
redundancy of investigating other administrations should be accorded
respect. Respondents having manifested that pertinent and credible
data are already in their hands or in the archives, petitioners’ idea of
an all-encompassing de novo inquiry becomes tenuous as it goes
beyond what the Executive Department needs.
The exclusion of other past administrations from the scope of
investigation by the Truth Commission is justified by the substantial
distinction that complete and definitive reports covering their
respective periods have already been rendered. The same is not true
with the immediate past administration. There is thus no undue favor
or unwarranted partiality. To include everybody all over again is to
insist on a useless act.
The distinction is not discriminatory
I find it contradictory for the ponencia to state, on the one hand, that
the Truth Commission would be labeled as a "vehicle
for vindictiveness and selective retribution"24 and declare, on the
other, that "its power to investigate is limited to obtaining facts x x x
and its findings "would at best be recommendatory in nature[,] [a]nd x
x x [the concerned agencies] have a wide degree of latitude to decide
whether or not to reject the recommendation."25
109
After precisely explaining that "fact-finding is not
adjudication,"26 the ponencia relates it to retribution which it depicts, in
the context of truth commissions, as a "retributory body set up to try
and punish those responsible for the crimes."27 The ponencia jumps
into conclusion but lands nowhere for it has no ground on which to
stand.
Further, the Court should not concern itself with the nebulous concept
of "partisan hostility," a relatively redundant term that eludes exact
definition in a political world of turncoatism. Had the assailed
issuance provided exemption to former members of the previous
administration who have joined the prevailing political party, I would
not hesitate to declare EO No. 1 void.
Far from being discriminatory, E.O No. 1 permits the probing of
current administration officials who may have had a hand in the
reported graft and corruption committed during the previous
administration, regardless of party affiliation. The classification
notably rests not on personalities but on period, as shown by the
repeated use of the phrase "during the previous administration."28
The ponencia treats adventures in "partisan hostility" as a form of
undue discrimination. Without defining what it is, the ponencia gives
life to a political creature and transforms it into a legal animal. By
giving legal significance to a mere say-so of "partisan hostility," it
becomes unimaginable how the Court will refuse to apply this novel
doctrine in the countless concerns of the inherently political branches
of government under an invocation of equal protection. And to think,
the present matter only involves the gathering of information.
To knowingly classify per se is not synonymous to intentional
discrimination, which brings me to the next point that the classification
is germane to the purpose of the law.
The classification is germane
to the purpose of the law
I entertain no doubt that respondents consciously and deliberately
decided to focus on the corrupt activities reportedly committed during
the previous administration. For respondents to admit that the
selection was inadvertent is worse. The ponencia, however, is quick
to ascribe intentional discrimination from the mere fact that the
classification was intentional.
Good faith is presumed. I find it incomprehensible how
the ponencia overturns that presumption. Citing an array of foreign
jurisprudence, the ponencia, in fact, recognizes that mere under-
inclusiveness or incompleteness is not fatal to the validity of a law
under the equal protection clause. Thus the ponencia pontificates:
The Court is not unaware that "mere underinclusiveness is not fatal to
the validity of a law under the equal protection clause." "Legislation is
not unconstitutional merely because it is not all-embracing and does
not include all the evils within its reach." It has been written that a
regulation challenged under the equal protection clause is not devoid
of a rational predicate simply because it happens to be incomplete. In
several instances, the underinclusiveness was not considered valid
reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the
"step by step" process. "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial scheme
simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no clear indicia of
inadvertence. That the previous administration was picked out was
deliberate and intentional as can be gathered from the fact that it was
stressed three times in the assailed executive order. "The equal
protection clause is voided by purposeful and intentional
discrimination."29(emphasis and underscoring supplied)
According to the ponencia itself, the E.O.’s failure to include all evils
within its reach, even by design, is not vulnerable to an equal
protection challenge. How the ponencia arrives at a contrary
conclusion puzzles.
Within our own jurisprudential shores, the Court expounded in Quinto
v. Comelec30 on those classifications which,albeit not all-inclusive,
remain germane to the purpose of the law.
110
Sad to state, this conclusion conveniently ignores the long-standing
rule that to remedy an injustice, the Legislature need not address
every manifestation of the evil at once; it may proceed "one step at a
time." In addressing a societal concern, it must invariably draw lines
and make choices, thereby creating some inequity as to those
included or excluded. Nevertheless, as long as "the bounds of
reasonable choice" are not exceeded, the courts must defer to the
legislative judgment. We may not strike down a law merely because
the legislative aim would have been more fully achieved by
expanding the class. Stated differently, the fact that a legislative
classification, by itself, is underinclusive will not render it
unconstitutionally arbitrary or invidious. There is no constitutional
requirement that regulation must reach each and every class to which
it might be applied; that the Legislature must be held rigidly to the
choice of regulating all or none.
Thus, any person who poses an equal protection challenge must
convincingly show that the law creates a classification that is
"palpably arbitrary or capricious." He must refute all possible rational
bases for the differing treatment, whether or not the Legislature cited
those bases as reasons for the enactment, such that the
constitutionality of the law must be sustained even if the
reasonableness of the classification is "fairly debatable." In the case
at bar, the petitioners failed – and in fact did not even attempt – to
discharge this heavy burden. Our assailed Decision was likewise
silent as a sphinx on this point even while we submitted the following
thesis:
. . . [I]t is not sufficient grounds for invalidation that we may find that
the statute’s distinction is unfair, underinclusive, unwise, or not the
best solution from a public-policy standpoint; rather, we must find that
there is no reasonably rational reason for the differing treatment.
(underscoring supplied)
The "one step at a time" approach is thus not unconstitutional. E.O.
No. 1 is not the first, but the latest, step in a series of initiatives
undertaken by Presidents, as earlier illustrated. Neither will it be the
last step. E.O. No. 1 contains a special provision31 concerning the
expansion of mandate. There being no constitutional violation in a
step-by-step approach, the present and future administrations may
release supplementary or comparable issuances.
The wisdom behind the issuance of the E.O. No. 1 is "outside the
rubric of judicial scrutiny."32 Analogous to Quinto’s instructions, this
Court cannot and should not arrogate unto itself the power to
ascertain and impose on the President the best or complete way of
obtaining information to eradicate corruption. Policy choices on the
practicality or desirability of data-gathering that is responsive to the
needs of the Executive Department in discharging the duty to
faithfully execute the laws are best left to the sound discretion of the
President.
Most enlightening as to how the classification is germane to the
purpose of the law is knowing first what is the purpose of the law.
According to the ponencia, the objective of E.O. No. 1 is the
"stamping out [of] acts of graft and corruption."33
I differ.
The purpose of E.O. No. 1 is the gathering of needed information to
aid the President in the implementation of public accountability laws.
Briefly stated, E.O. No. 1 aims to provide data for the President.
The ponencia, in fact, has earlier explained: "It should be stressed
that the purpose of allowing ad hoc investigating bodies to exist is to
allow an inquiry into matters which the President is entitled to
know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement
of the laws of the land."34
The long-term goal of the present administration must not be
confused with what E.O. No. 1 intends to achieve within its short life.
The opening clauses and provisions of E.O No. 1 are replete with
phrases like "an urgent
call for the determination of the truth," "dedicated solely to
investigating and finding out the truth," and "primarily seek and find
the truth."
The purpose of E.O. No. 1 is to produce a report which, insofar as the
Truth Commission is concerned, is the end in itself. The purpose of
111
the report is another matter which is already outside the control of
E.O. No. 1.
Once the report containing the needed information is completed, the
Truth Commission is dissolved functus officio. At that point, the
endeavor of data-gathering is accomplished, and E.O No. 1 has
served its purpose. It cannot be said, however, that it already
eradicated graft and corruption. The report would still be passed upon
by government agencies. Insofar as the Executive Department is
concerned, the report assimilates into a broader database that
advises and guides the President in law enforcement.
To state that the purpose of E.O. No. 1 is to stamp out acts of graft
and corruption leads to the fallacious and artificial conclusion that
respondents are stamping out corrupt acts of the previous
administration only, as if E.O. No. 1 represents the entire anti-
corruption efforts of the Executive Department.
To state that the purpose of E.O. No. 1 is to eradicate graft and
corruption begs the question. What is there to eradicate in the first
place, if claims of graft and corruption are yet to be verified by the
Truth Commission? Precisely, by issuing E.O. No. 1, respondents
saw the need to verify raw data before initiating the law enforcement
mechanism, if warranted.
The classification is not limited
to existing conditions only
The Truth Commission is an ad hoc body formed under the Office of
the President. The nature of an ad hoc body is that it is limited in
scope. Ad hoc means for the particular end or case at hand without
consideration of wider application.35 An ad hoc body is inherently
temporary. E.O. No. 1 provides that the Truth Commission "shall
accomplish its mission on or before December 31, 2012."36
That the classification should not be limited to existing conditions
only, as applied in the present case, does not mean the inclusion of
future administrations. Laws that are limited in duration (e.g., general
appropriations act) do not circumvent the guarantee of equal
protection by not embracing all that may, in the years to come, be in
similar conditions even beyond the effectivity of the law.
The requirement not to limit the classification to existing conditions
goes into the operational details of the law. The law cannot, in fine
print, enumerate extant items that exclusively compose the
classification, thereby excluding soon-to-exist ones that may also fall
under the classification.
In the present case, the circumstance of available reports of large-
scale anomalies that fall under the classification (i.e., committed
during the previous administration) makes one an "existing condition."
Those not yet reported or unearthed but likewise fall under the same
class must not be excluded from the application of the law. There is
no such exclusionary clause in E.O. No. 1.
The ratiocination on this third requisite so as to include previous
administrations already goes into the "classifications," not the
"conditions." The ponencia rewrites the rule leading to the absurd
requirement that the classification should not be limited to the existing
"classification" only.
The classification applies equally
to all members of the same class
Petitioners concede, by their failure to allege otherwise, that the
classification applies equally to all members withinthe same class
(i.e., all reports of large-scale graft and corruption during the previous
administration). By this implied admission, this fourth requirement
meets no objection.
Petitioners’ only insistent contention, as sustained by the ponencia, is
that all prior administrations belong to the same class, citing that
equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed.37
Petitioners do not espouse the view that no one should be
investigated. What they advocate is that all administrations should be
investigated or, more accurately, all reports of large-scale graft and
112
corruption during the tenure of past administrations should be
subjected to investigation.
Discrimination presupposes prejudice. I find none.
First, no one complains of injury or prejudice. Petitioners do not seek
the lifting of their own obligations or the granting of their own rights
that E.O. No. 1 imposes or disallows. As earlier
expounded, petitioner-legislators cannot plausibly invoke the equal
protection claims of other persons, while petitioner Biraogo did not
invoke it at all.
Second, petitioners do not allege that previous administrations, other
than the immediate past administration, have been denied the right to
appear before or be examined by the Truth Commission. Neither do
petitioners identify the specific fact-finding obligations exclusively
imposed upon the immediate past administration by the Truth
Commission whose primary duty is merely to "investigate reports of
graft and corruption and to recommend the appropriate action."38
Third, assuming that there already exists an imposition of obligation
from the mere recommendation for prosecution (as one of the
possible appropriate measures) by the Truth Commission, the act of
not recommending the prosecution of all those who could be probably
guilty of graft and corruption is not violative of the equal protection
clause. Even in the succeeding stage of preliminary investigation,
which is already "out of the Truth Commission’s sphere of
functions,"39 jurisprudence instructs that the right to equal protection
of the laws "may not be perversely used to justify desistance by the
authorities from prosecution of a criminal case, just because not all of
those who are probably guilty thereof were charged."40
Verily, where there is claim of breach of the due process and equal
protection clauses, considering that they are not fixed rules but rather
broad standards, there is a need for proof of such persuasive
character as would lead to such a conclusion. Absent such a
showing, the presumption of validity must prevail.41
Finally, even assuming arguendo that all prior administrations should
be included within the scope of investigation of the Truth
Commission, E.O. No 1 is saved by a separability 8
Vide Bagatsing v. Committee on Privatization, PNCC, 316
clause,42 considering that the remaining portions can stand Phil. 414 (1995).
independently of the assailed portions and constitute a complete,
intelligible and valid law which carries out the intent of the 9
Anak Mindanao Party-List Group v. The Executive
law.43 There is thus no basis for denying the other provisions of their Secretary, G.R. No. 166052, August 29, 2007, 531 SCRA
continued force and enjoining the operation of the Truth Commission. 583.

I, therefore, submit that there exists a "reasonable foundation or 10

Vide e.g., Southern Hemisphere Engagement Network, Inc.
rational basis"44 for defining the subject of the special fact-finding v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010,
investigation by the Truth Commission. where the Court found that Sen. Ma. Ana Consuelo Madrigal
had no legal standing.
For the foregoing reasons, I vote to DISMISS the petitions.
11
Ponencia, pp. 13-14, citing Philippine Constitution
CONCHITA CARPIO MORALES Association v. Enriquez, G.R. No. 113105, August 19, 1994,
Associate Justice 235 SCRA 506.

12
Pimentel, Jr. v. Office of the Executive Secretary, G.R. No.
158088, July 6, 2005, 462 SCRA 622, 631-632.
Footnotes
13
509 Phil. 567 (2005).
1
Executive Order No. 292 (July 25, 1987), Book I, Chapter 9,
Sec. 37. 14
Vide White Light Corporation v. City of Manila, G.R. No.
122846, January 20, 2009, 576 SCRA 416, 431-432, which
2
Constitution, Art. VII, Secs. 1 & 7 (2nd sentence), reads:
respectively.
American jurisprudence is replete with examples
3
Id., Sec. 7 (1st sentence). where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process
4
Executive Order No. 292 (July 25, 1987), Book III, Title III, or equal protection claims of other persons or
Chapter 10, Sec. 31. classes of persons injured by state action. In Griswold
v. Connecticut, the United States Supreme Court held
that physicians had standing to challenge a
5
Presidential Decree No. 1416 (June 9, 1975), as amended
reproductive health statute that would penalize them
by Presidential Decree No. 1772 (January 15, 1982).
as accessories as well as to plead the constitutional
protections available to their patients. The Court held
6
Constitution, Art. III, Sec. 1. that:
7
Ponencia, p. 41. The rights of husband and wife, pressed here, are
likely to be diluted or adversely affected unless those

113
 rights are considered in a suit involving those 18
Ponencia, p. 36.
who have this kind of confidential relation to them.
19
Quinto v. Commission on Elections, G.R. No. 189698,
An even more analogous example may be found February 22, 2010.
in Craig v. Boren, wherein the United States Supreme
Court held that a licensed beverage vendor has 20
Ponencia, pp. 24-25.
standing to raise the equal protection claim of a male
customer challenging a statutory scheme prohibiting 21
Id. at 37.
the sale of beer to males under the age of 21 and to
females under the age of 18. The United States High 22
"x x x reports of graft and corruption of such scale and
Court explained that the vendors had standing "by
magnitude that shock and offend the moral and ethical
acting as advocates of the rights of third parties who
sensibilities of the people x x x;" vide Executive Order No. 1
seek access to their market or function."
(July 30, 2010), Sec. 1.
Assuming arguendo that petitioners do not have a 23
Respondents’ Memorandum, Annex 1, citing Executive
relationship with their patrons for the former to assert
Order No. 318 (May 25, 1950) and Executive Order No. 1
the rights of the latter, the overbreadth doctrine comes
(December 30, 1953); vide Executive Order No. 306 (July 15,
into play. x x x (emphasis and underscoring supplied)
1958), Executive Order No. 378 (February 18, 1960) later
repealed by Executive Order No. 457 (December 29, 1961).
15
Consequently, A.M. No. 99-2-04-SC (effective March 15,
1999) directs: "No new issues may be raised by a party in the 24
Ponencia, p. 36.
Memorandum. Issues raised in previous pleadings but not
included in the Memorandum shall be deemed waived or
abandoned. Being a summation of the parties' previous
25
Id. at 29.
pleadings, the Memoranda alone may be considered by the
Court in deciding or resolving the petition."
26
Id. at 27, vide id. at 7.

16
Ponencia, p. 16.
27
Id. at 8.

17
It can be argued that the danger of otherwise resolving one Executive Order No. 1 (July 30, 2010), Secs. 1-2 & 7th
28

issue not raised by the proper party, which issue whereas clause.
is personal to him, is the effect of foreclosing certain defenses
known only to him. If the issue concerning the "injured non- 29
Ponencia, p. 39.
party" is defeated, it then becomes the "law of the case"
(vide Banco de Oro-EPCI, Inc. v. Tansipek, G.R. No. 181235, 30
G.R. No. 189698, February 22, 2010.
July 22, 2009, 593 SCRA 456 on "law of the case"). The
injured party can no longer resurrect the issue in a later case, 31
Executive Order No. 1 (July 30, 2010), Sec. 17. Special
even if he can present arguments more illuminating than that Provision Concerning Mandate. – If and when in the judgment
of the current "uninjured" petitioner. of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the

114
investigation of cases and instances of graft and corruption 44
Ambros v. Commission on Audit (COA), G.R. No. 159700,
during the prior administrations, such mandate may be so June 30, 2005, 462 SCRA 572, 597.
extended accordingly by way of a supplemental Executive
Order.
The Lawphil Project - Arellano Law Foundation
32
Quinto v. Commission on Elections, supra.

33
Ponencia, p. 37.
DISSENTING OPINION
34
Id. at 24.
Sir, I say that justice is truth in action.
35
<http://www.merriam-webster.com/dictionary/ad+hoc>
[visited: November 10, 2010]. Benjamin Disraeli, in a speech delivered before the British House of
Commons, February 11, 1851
36
Executive Order No. 1 (July 30, 2010), Sec. 14.
SERENO, J:
37
Ponencia, p. 33.
The majority Decision defeats the constitutional mandate on public
38
Id. at 26. accountability; it effectively tolerates impunity for graft and corruption.
Its invocation of the constitutional clause on equal protection of the
laws is an unwarranted misuse of the same and is a disservice to
39
Id. at 29.
those classes of people for whom the constitutional guarantee was
created as a succor. The majority Decision accomplished this by
40
Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, July completely disregarding "reasonableness" and all its jurisprudential
30, 2008, 560 SCRA 518, 539. history as constitutional justification for classification and by replacing
the analytical test of reasonableness with mere recitations of general
British American Tobacco v. Camacho, G.R. No. 163583,
41
case doctrines to arrive at its forced conclusion. By denying the right
August 20, 2008, 562 SCRA 511, 570. of the President to classify persons in Executive Order No. (EO) 1
even if the classification is founded on reason, the Decision has
42
Executive Order No. 1 (July 30, 2010), Sec. 18. Separability impermissibly infringed on the constitutional powers of the President.
Clause.– If any provision of this Order is declared It wafts the smell of hope onto the air towards those who seek the
unconstitutional, the same shall not affect the validity and affirmance of EO 1 by saying:
effectivity of the other provisions hereof.
... [T]his is not a death knell for a truth commission as nobly
43
Vide Abakada Guro Party List v. Purisima, G.R. No. envisioned by the present administration. Perhaps a revision of the
166715, August 14, 2008, 562 SCRA 251, 298- executive issuance so as to include the earlier past administrations
299; Executive Secretary v. Southwing Heavy Industries, Inc., would allow it to pass the test of reasonableness and not be an
G.R. No. 164171, February 20, 2006, 482 SCRA 673. affront to the Constitution...1

115
but the scent of hope, as will be demonstrated, is that which
emanates from a red herring. Since Ferdinand Marcos’s presidency,
no Court has stifled the powers of the Philippine presidency as has
this Court through the majority Decision.
The Concurring Opinion of Justice Arturo Brion reveals one
undercurrent beneath the majority’s logically indefensible conclusion
that flows thusly: (1) the Filipino people cannot be trusted to
recognize truth from untruth; (2) because the people cannot make the
distinction, there exists a large possibility that the people would
accept as truth the Philippine Truth Commission (PTC) version of the
story on reports of graft and corruption under the administration of
President Gloria Macapagal-Arroyo even if it turns out to be untruth;
(3) this potential public belief in the untruth also enables the
credulous public’s inordinate pressure on the Ombudsman and the
courts to concur in the untruth; (4) because of the possibility of this
inordinate pressure being brought to bear, the probability that the
Ombudsman and the courts would give in to such pressure exists; (5)
thus the formula emerges – the public clamor supportive of the
untruth plus the Ombudsman and the courts possibly giving way to
this clamor equals violation of the due process rights of former
President Arroyo and her officials; in turn, this sum equals striking
down the Philippine Truth Commission for being unconstitutional.
The separate opinions of Chief Justice Renato Corona and Justices
Teresita de Castro, Lucas Bersamin, and Jose Perez hold an
extreme view on EO 1, opposing well-established jurisprudence
which categorically pronounce that the investigatory powers of the
Ombudsman may be concurrently exercised with other legally
authorized bodies. Chief Justice Corona and Justices de Castro,
Diosdado Peralta, and Bersamin even go further in saying that it
would take congressional action, by means of legislation, to create a
truth commission with the same mandate as that in EO 1; and even if
Congress itself were to create such commission, it would still be
struck down for violating the equal protection right of former President
Arroyo.
Justice Antonio Carpio opines that the effect of the majority Decision
is the absolute prevention of the investigation of the Arroyo
administration.2 I agree with his assessment, especially considering
the further views on the matter expressed separately by Chief Justice
116
Corona and Justices de Castro, Brion, Peralta, Bersamin, and Perez.
In my view, the Decision and the separate concurring opinions
manifest the "backlash effect" wherein movements to achieve social
justice and a more equitable distribution of powers are met with
opposition from the dominant group. When the people start
demanding accountability, in response to which truth commissions
and other fact-finding bodies are established, those from the
previously ruling elite, who retain some hold on power, lash back at
the effort by crying "persecution," "violation of due process" and
"violation of the equal protection guarantee." Some of the petitioners,
according to Justice Conchita Carpio Morales, are in essence acting
for and in behalf of former President Arroyo and her officials,
otherwise they would not be invoking the "equal protection clause," a
defense that is inherently personal to President Arroyo and her
officials. These petitioners are wielding the backlash whip through the
Petitions. In bending over backwards to accommodate the Petitions,
especially on equal protection claims which Petitioners could not
properly raise, this Court is wittingly or unwittingly compromising
important constitutional principles and rendering the path to a
genuinely strong democratic Philippines more difficult. With all due
respect, the Decision in effect conveys the immoral lesson that what
is all-important is to capture and retain political power at all costs and
misuse the legal infrastructure, including the Bill of Rights and the
power of appointment, to create a shield of immunity from
prosecution of misdeeds.
Findings and Dispositive Conclusion of the Majority
The dispositive conclusion of the majority Decision contradicts its own
understanding of both the Constitution and the legal implication of
recent political events. It finds that: (1) the Filipino people convinced
in the sincerity and ability of Benigno Simeon Aquino III to carry out
the noble objective of stamping out graft and corruption, "catapulted
the good senator to the Presidency"3; (2) to transform his campaign
slogan into reality, "President Aquino found a need for a special body
to investigate reported cases of graft and corruption allegedly
committed during the administration of his predecessor"4; (3) the
Philippine Truth Commission (PTC) is an ad hoc committee that flows
from the President’s constitutional duty to ensure that the laws are
faithfully executed, and thus it can conduct investigations under the
authority of the President to determine whether the laws were
faithfully executed in the past and to recommend measures for the
future to ensure that the laws will be faithfully executed;5 (4) the PTC
is constitutional as to its manner of creation and the scope of its
powers;6 (5) that it is similar to valid investigative bodies like the
PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission and the Zeñarosa Commission.7 Nevertheless, the
majority Decision concluded that the PTC should be struck down as
unconstitutional for violating the equal protection clause for the
reason that the PTC’s clear mandate is to "investigate and find out
the truth concerning the reported cases of graft and corruption during
the previous administration only."8
There is a disjoint between the premises and the conclusion of the
Decision caused by its discard of the elementary rules of logic and
legal precedents. It suffers from internal contradiction, engages in
semantic smoke-and-mirrors and blatantly disregards what must be
done in evaluating equal protection claims, i.e., a judge must ask
whether there was indeed a classification; the purpose of the law or
executive action; whether that purpose achieves a legitimate state
objective; the reason for the classification; and the relationship
between the means and the end. Within those layers of analysis, the
judge must compare the claimed reason for classification with cases
of like or unlike reasoning. He knows the real world, he looks at its
limitations, he applies his common sense, and the judge knows in his
judicial heart whether the claimed reason makes sense or not. And
because he is a practical man, who believes as Justice Oliver
Wendell Holmes did that the life of the law is in experience, he knows
false from genuine claims of unconstitutional discrimination.
With all due respect, it is bad enough that the Decision upsets the
long line of precedents on equal protection and displays self-
contradiction. But the most unacceptable effect of the majority
Decision is that a court of unelected people – which recognizes that
the President "need(s) to create a special body to investigate reports
of graft and corruption allegedly committed during the previous
administration" to "transform his campaign promise" "to stamp out
graft and corruption"9 – proposes to supplant the will of the more than
15 million voters who voted for President Aquino and the more than
80% of Filipinos who now trust him, by imposing unreasonable
restrictions on and impossible, unknowable standards for presidential
action. The Decision thereby prevents the fulfillment of the political
117
contract that exists between the Philippine President and the Filipino
people. In so doing, the Court has arrogated unto itself a power never
imagined for it since the days of Marbury v. Madison10 when the
doctrine of judicial review was first laid down by the U.S. Supreme
Court. The majority does not only violate the separation of powers
doctrine by its gratuitous intrusion into the powers of the President –
which violation the Decision seeks to deny. Nay, the majority created
a situation far worse – the usurpation by the judiciary of the sovereign
power of the people to determine the priorities of Government.
The Majority Decision’s Expansive Views of the Powers of the
Presidency and the Mandate of the Aquino Government
The majority Decision starts with an expansive view of the powers of
the Philippine presidency and what this presidency is supposed to
accomplish for the Filipino people:
The genesis of the foregoing cases can be traced to the events prior
to the historic May 2010 elections, when then Senator Benigno
Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, "Kung walang corrupt, walang mahirap."
The Filipino people convinced in his sincerity and in his ability to carry
out this noble objective catapulted the good senator to the
Presidency.11
Here we have the majority affirming that there exists a political
contract between the incumbent President and the Filipino people –
that he must stamp out graft and corruption. It must be remembered
that the presidency does not exist for its own sake; it is but the
instrument of the will of the people, and this relationship is embodied
in a political contract between the President and the people. This
political contract creates many of the same kinds of legal and
constitutional imperatives under the social contract theory as organic
charters do. It also undergirds the moral legitimacy of political
administrations. This political contract between President Aquino and
the Filipino people is a potent force that must be viewed with the
same seriousness as the 1987 Constitution, whose authority is only
maintained by the continuing assent thereto of the same Filipino
people.
Then the Decision proceeds to affirm the power of the President to
conduct investigations as a necessary offshoot of his express
constitutional duty to ensure that the laws are faithfully executed.12 It
then proceeds to explain that fact-finding powers must necessarily
carry the power to create ad hoc committees to undertake fact-
finding. And because the PTC is only an ad hoc committee that is to
be funded from the approved budget of the Office of the President,
the Executive Order that created it is not a usurpation of any
legislative power.
The Decision upholds in extensive affirmatory language what, since
the creation of the Republic, has been understood about the powers
of the Presidency and the need for the effective exercise of the
investigatory powers of that office to serve state objectives.
Unfortunately, it then breaks its own chain of thought and shrinks the
vista from its grand view of representative government to a view that
is myopic and logically infirm.
The Majority Decision’s Turn-Around to Unconstitutionally Restrict the
Powers of the Aquino Presidency, its Unpredictable Standard for
"Reasonable Prioritization," and the Resulting Imposition of an
Impossible Condition on Aquino’s Campaign Promise, as Well as Its
Internal Contradiction
Having strongly expounded on the need of President Aquino to fulfill
his political contract with the Filipino people to address graft and
corruption, and his constitutional duty to ensure that the laws are
faithfully executed, the Court suddenly finds itself impermissibly
restricting this power when the object of the exercise of the
Presidential powers of investigation under EO 1 focused on the
reported misdeeds of the Arroyo administration. From full support of
the incumbent President and his constitutional powers, the majority
Decision reverses its track to unconstitutionally restrict his powers by
effectively denying him the right to choose the priority – in this case
the Arroyo administration – in his graft-busting campaign.
The reasoning of the Decision proceeds thus: (a) all past
administrations are a class and to exclude other past administrations
is on its face unlawful discrimination; (b) the reasons given by the
Solicitor General for the limited scope of the intended investigation –
administrative overburden if other past administrations are included,
118
difficulty in unearthing evidence on old administrations, duplication of
investigations already made – are either specious, irrelevant to the
legitimate and noble objective of the PTC to stamp out corruption, or
beside the point and thus do not justify the discrimination; (c) to be
constitutional, the PTC must, "at least, have authority to investigate
all past administrations"13 and "must not exclude the other past
administrations";14 (d) "[p]erhaps a revision of the executive issuance
so as to include the earlier past administrations would allow it to pass
the test of reasonableness and not be an affront to the
Constitution";15 and (e) "reasonable prioritization is permitted," but "it
should not be arbitrary lest it be struck down as unconstitutional."16
The Decision is telling the President to proceed with his program of
anti-corruption on the condition that, when constituting a fact-finding
commission, he must include "all past administrations" without
exception, save he cannot be expected to investigate dead
presidents17 or those whose crimes have prescribed. He may
prioritize, but he must make sure such prioritization is not arbitrary.
In talking about an acceptable formulation for a fact-finding
commission, it is as if the Decision is talking past EO 1. The
President has already made his fact-finding prioritization in EO
1, and his prioritization is not arbitrary. The government has
already explained why investigation of the Arroyo administration is its
priority – (a) the audit of an immediate past administration is usually
where audits begin; (b) the evidence of graft and corruption is more
likely to still be intact; (c) the most immediate deleterious effects of
the reported graft and corruption of the immediate past administration
will need to be faced by the present administration; (d) the resources
required for investigation of the immediate past administration alone
will take up all the resources of the PTC; and (e) other past
administrations have already been investigated and one past
president has already been jailed. But this Court is saying that all the
above are not indicators of rational prioritization. Then, what is? This
Court seems to have set an inordinately high standard for
reasonableness that is impossible to satisfy, primarily because it is
unknowable and unpredictable. The only conclusion is that there is no
other standard out there acceptable to the majority, and there never
will be.18 Even the majority Decision gives no clue, and perhaps the
majority has no clue on what those reasonable standards are. As
Justice Florentino Feliciano said in his concurrence in Tañada v.
Tuvera:19
x x x The enforcement of prescriptions which are both unknown to
and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such
application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a
government and its people.
This is the red herring – for the majority Decision to speak as if there
were a way to "tweak" EO 1 so that it becomes acceptable to the
majority when in reality there is no way that can be done without loss
of dignity to the incumbent presidency. The tweaked EO, according to
the Decision, must include all past administrations in its coverage,
and can identify its priority; but a reading of the Decision already
indicates that the moment the prioritization hints at focusing on the
Arroyo administration, then the majority is ready to once again strike
it down. Such proposition is to require the Aquino administration to
engage in hypocrisy – to fact-find on "the elephant in the room"
without talking about that elephant in particular because the majority
finds that to talk about that particular elephant without talking about
all other elephants is to deprive that particular elephant of its equal
protection right. This Court has imposed an unbearable and
undignified yoke on the presidency. It is to require the Aquino
Presidency to pretend that addressing the reported graft and
corruption of the Arroyo administration was never a major campaign
promise of this Presidency to the people.
It is incumbent upon any administration to conduct an internal audit of
its organization – in this case, the executive department. This is
standard practice in the private sector; it should likewise be standard
practice for the public sector if the mandate of public accountability is
to be fulfilled. No President should be prevented from creating
administrative structures to exact accountability; from conducting
internal audits and creating controls for executive operations; and
from introducing governance reforms. For the Court to do so would
be to counter progress and to deny the executive department the use
of best practices that are par for the course in modern democracies.
119
The Decision contradicts itself by concluding that the graft and
corruption fact-finding mandate of the PTC is confined only to those
incidents in the Arroyo administration. In the same breath, it
acknowledges that the express language of EO 1 indicates that the
President can expand the focus of the PTC at any time by including
other past misdeeds of other administrations. In other words, the
clear and unmistakable language of EO 1 precludes any conclusion
that the PTC’s investigation of graft and corruption is confined only to
the administration of President Arroyo. EO 1 should be read as
empowering the PTC to conduct its fact-finding on the Arroyo
administration, andthat this fact-finding may expand to include other
past administrations on the instruction of President Aquino.
The use of the word "only" in the majority Decision20 is unwarranted,
as it indicates exclusivity of the PTC’s focus on the Arroyo
administration – an exclusivity that is incompatible with the
unequivocally non-exclusive language of Sec. 17 of EO 1.21 The
litmus test that should have been applied by this Court is whether or
not EO 1 is unconstitutional for prioritizing fact-finding on the reported
graft and corruption of the Arroyo administration without foreclosing,
but not guaranteeing, future investigation into other administrations.
Unwarranted Creation of "Class of All Political Administrations"
as the Object of Constitutional Review by This Court
At the outset, it must be emphasized that EO 1 did not, for purposes
of application of the laws on graft and corruption, create two classes
– that of President Arroyo and that of other past administrations.
Rather, it prioritized fact-finding on the administration of President
Arroyo while saying that the President could later expand the
coverage of EO 1 to bring other past administrations under the same
scrutiny. Prioritization per se is not classification. Else, as all human
activities require prioritization, everyone in a priority list for regulation
or investigation can make out a case that there is prima facie
classification, and that the prioritization is not supported by a
reasonable objective. All acts of government would have to come to a
halt and all public offices would need to justify every plan of action as
to reasonableness of phases and prioritization. The step-by-step
approach of legislative and regulatory remedies – recognized as valid
in Quinto v. COMELEC22 and in the case law23 cited by the Decision –
in essence says that prioritization is not classification, much less
invalid classification.
The majority looks at the issue of equal protection by lumping into a
single class all past administrations,24 i.e., those of former Presidents
Aguinaldo, Quezon, Osmeña, Laurel, Roxas, Quirino, Magsaysay,
Garcia, Macapagal, Marcos, Aquino, Ramos, Estrada and Arroyo.
Justice Carpio makes the case that recovery of ill-gotten wealth is
imprescriptible. Then conceivably under the formulation of the
majority, all past administrations are required to be investigated. In
fact, even with the exceptions introduced by the Decision, its
conclusory parts emphasize the need to include all past
administrations in the coverage of EO 1. It then pronounces that any
difference in treatment between members of this class is unequal
protection, such that to treat the Arroyo administration differently from
the administration of President Aguinaldo is unconstitutional. After all,
says the majority Decision, corruption was reported in other past
administrations as well.
The lumping together of all Philippine political administrations
spanning 111 years, for purposes of testing valid legislation,
regulation, or even fact-finding is unwarranted. There is inherent
illogic in the premise of the Decision that administrations from the
time of Aguinaldo to Arroyo belong to one class.25
Assuming arguendo that all the political administrations can be
categorized as one class, the test of reasonableness has been more
than met by EO 1, as extensively discussed by Justices Carpio,
Carpio Morales, Antonio Eduardo Nachura, and Roberto Abad. Let
me just add to their voices by looking at the constitutional problem
before this Court from other angles.
The Majority Decision Indirectly Admits that the
"Reasonableness Test" Has Been Satisfied in the Same Breath
that it Requires the Public to Live with an Unreal World View
To quote from the majority Decision’s discussion of the claim of
violation of the equal protection clause:
120
Although the purpose of the Truth Commission falls within the
investigative powers of the President ...
.........
... It must not leave out or "underinclude" those that should otherwise
fall into a certain classification.
.........
As elucidated in Victoriano v. Elizalde Rope Workers’ Union and
reiterated in a long line of cases,
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 statute. Equality of operation of statutes
does not mean indiscriminate operation on 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 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. All that is required of a valid
classification is that it be reasonable, which means that 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 apply equally to each member of the class. The Court has held
that the standard is satisfied if the classification is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption
during the previous administration" only. The intent to single out the
previous administration is plain, patent and manifest ...
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are
not substantial enough to merit the restriction of the investigation to
the "previous administration" only.
... The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness." The reason given is
specious. It is without doubt irrelevant to a legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it
breeds."
The probability that there would be difficulty in unearthing
evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the
point. Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC.
Neither is the PTC expected to conduct simultaneous investigations
of previous administrations, given the body’s limited time and
resources. "The Law does not require the impossible" (Lex non cognit
ad impossibilia).
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century’s worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC,
to be true to its mandate of searching for the truth, must not exclude
the other past administration. The PTC must, at least, have the
authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional. …
121
It could be argued that considering that the PTC is an ad hoc
body, its scope is limited. The Court, however, is of the
considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the law
should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws
must conform and in accordance with which all private rights
determined and all public authority administered. Laws that do not
conform to the Constitution should be stricken down for being
unconstitutional. While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution.
To exclude the earlier administrations in the guise of "substantial
distinctions" only an "adventure in partisan hostility." …
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class. "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude
additions to the number included within a class, but must be of such
nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations
and circumstances which are relative to the discriminatory legislation
and which are indistinguishable from those of the members of the
class must be brought under the influence of the law and treated by it
in the same way as members of the class."
The Court is not unaware that "mere underinclusiveness is not fatal to
the validity of a law under the equal protection clause" ... In several
instances, the underinclusiveness was not considered a valid
reason to strike down a law or regulation where the purpose can
be attained in future legislations or regulations. These cases
refer to the "step by step" process. "With regard to equal
protection claims, a legislature does not run the risk of losing
the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional
as can be gleaned from the fact that it was underscored at least three
times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report
to be focused on unlike the investigative commissions created in the
past. "The equal protection clause is violated by purposeful and
intentional discrimination."
... Although Section 17 allows the President the discretion to expand
the scope of the investigations of the Truth Commission so as to
include the acts of graft and corruption, it does not guarantee that
they would be covered in the future. Such expanded mandate of the
commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section would
then be meaningless. This will only fortify the fears of the petitioners
that the Executive Order No. 1 was "crafted to tailor-fit the
prosecution of officials and personalities of the Arroyo
administration."26 (Emphasis and underscoring supplied)
In an earlier portion, I discussed the findings of the majority Decision
regarding the mandate of President Aquino from the electorate and
the vast expanse of his powers to investigate and ensure the faithful
execution of the laws. The majority concedes the reasonableness of
the purpose of EO 1, but, as shown in the above excerpts, it contests
the manner by which President Aquino proposes to achieve his
purpose. The very discussion above, however, demonstrates the self-
contradiction and unreality of the majority Decision’s worldview.
First, the Decision concedes that classification per se is not forbidden
in the process of legislation or regulation. Indeed, cases identified by
the Decision, when examined, pronounce that the legislature and the
regulators must necessarily pick and choose in the process of their
work.
Second, in legislation or regulation, a step-by-step process resulting
in a classification of those that are immediately included therein
versus those that have yet to be included in the future is
constitutional.
Third, the Decision also concedes that the under-inclusiveness of
remedial measures is not unconstitutional, especially when the
purpose can be attained through inclusive future legislation or
122
regulation. I note of course, that the Decision states in an earlier part
that "under-inclusiveness" makes for invalid classification. It is
important to note the observation of Justice Carpio that the creation
of the Presidential Commission on Good Government (PCGG) has
consistently been upheld by the Court despite constitutional
challenges on equal protection grounds. The PCGG’s charter has the
same "future inclusion" clause as Section 17 of EO 1; yet, the
majority Decision ignores jurisprudence on the PCGG.
Fourth, the Decision, through a quoted case,27 observes that valid
under-inclusiveness can be the result of either inadvertence or
deliberateness.
Regardless of the foregoing findings and discussions, which in effect
support its validity, EO 1 is struck down by the Decision. The majority
creates an argument for the invalidity of EO 1 by quoting only from
general principles of case law and ignoring specific applications of the
constitutional tests for valid classification. Instead of drawing from
real-world experiences of classification decided in the past by the
Court, the Decision relies on general doctrinal statements normally
found in cases, but divorces these doctrinal statements from their
specific contextual setting and thereby imposes unrealistic standards
for presidential action.
The law has always been that a class can be validly distinguished
from others if there is a reasonable basis for the distinction. The
reasonableness of the classification in EO 1 was amply demonstrated
by the Solicitor General, but the majority simply responds
dismissively that the distinctions are superficial, specious and
irrelevant, without clearly explaining why they are so. Contrary to the
conclusion of the majority, jurisprudence bear out the substantial and
reasonable nature of the distinction.
With respect to the first reason for the classification claimed by the
Solicitor General – that other past administrations have already been
investigated and, hence, there is constitutional basis not to include
them in the immediate focus of the investigation – the case of Luna v.
Sarmiento28 supports the conclusion that the distinction is
constitutional.
Commonwealth Act No. (CA) 703, which was sustained by Luna v.
Sarmiento, created two sets of situations – one in which persons
were delinquent in their tax payments for half of the year 1941 and
the entirety of the years 1942-45 (during the Japanese occupation),
and another in which persons had paid their taxes for the said
periods. Only the first set of persons was benefited by the tax
amnesty provision of CA 703. The law was silent on the treatment of
the tax payments made by compliant taxpayers during that period. A
claim of unequal protection was raised. The Court said:
Does this provision cover taxes paid before its enactment, as the
plaintiff maintains and the court below held, or does it refer, as the
City Treasurer believes, only to taxes which were still unpaid?
There is no ambiguity in the language of the law. It says "taxes and
penalties due and payable," the literal meaning of which is taxes
owed or owing. (See Webster's New International Dictionary.) Note
that the provision speaks of penalties, and note that penalties accrue
only when taxes are not paid on time. The word "remit" underlined by
the appellant does not help its theory, for to remit is to desist or
refrain from exacting, inflicting, or enforcing something as well as to
restore what has already been taken. (Webster's New International
Dictionary)
We do not see that literal interpretation of Commonwealth Act No.
703 runs counter and does violence to its spirit and intention, nor do
we think that such interpretation would be "constitutionally bad"
in that "it would unduly discriminate against taxpayers who had
paid in favor of delinquent taxpayers."The remission of taxes due
and payable to the exclusion of taxes already collected does not
constitute unfair discrimination. Each set of taxes is a class by itself,
and the law would be open to attack as class legislation only if all
taxpayers belonging to one class were not treated alike. They are
not.29
In other words, within the class of taxpayers obligated to pay taxes in
the period from the second half of 1941 to the end of 1945 are two
subclasses – those who did not pay their taxes and those who did. By
the same kind of reasoning, within the class of political
administrations, if past administrations have already been the subject
of a fact-finding commission, while one particular administration has
123
not been so, that alone is a good basis for making a distinction
between them and an administration that has not yet been
investigated. There is a constitutionally valid basis, therefore, to
distinguish between the Marcos, Ramos, and Estrada administrations
– which have already been the subject of fact-finding commissions –
and the Arroyo administration.
With respect to the second reason for the classification – that it would
be unduly oppressive and burdensome to require the PTC to
investigate all administrations – case law holds that administrative
constraints are a valid basis for classification.
In British American Tobacco v. Camacho,30 the Court declared the
legislative classification freeze on the four-tiered system of cigarette
taxes as a valid and reasonable classification arising from practicality
and expediency.31 Thus, freezing the tax classification of cigarettes
based on their 1996 or 2003 net retail prices was found to be the
most efficient way to respond to Congress’ legitimate concern with
simplifying tax collections from cigarette products. In a similar vein,
the President believed that the most efficient and effective way of
jump-starting his administration’s fight against corruption was to focus
on one freezable time frame – the latest past administration. The
legitimate and valid administrative concern is obviously the limited
resources and time available to the PTC to make a comprehensive
yet valuable fact-finding report with recommendations to address the
problem of graft and corruption in a timely and responsive manner
within a period of two years. Hence, there can be no violation of equal
protection based on the fact that the PTC’s investigation is limited to
the investigation of what can be feasibly investigated, a classification
based on the Executive’s practical administrative constraints.
With respect to the third reason for the classification made by EO 1,
one that lumps together the various temporal reasons, the Solicitor
General describes it thus:
... The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administration
long gone, the current administration will most likely bear the
immediate consequence of the policies of the previous administration.
... The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure
that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current
administration.
The temporal dimension of every legal argument is supremely
important, imposed by the inevitable fact that this world and its
inhabitants are creatures of space and time. Every public official,
therefore, must accomplish his duties within the constraints of space
and time. To ignore the limitation of time by assuming that a public
official has all the time in the world to accomplish an investigative
goal, and to force the subject of the universe of his scrutiny to
comprise all past administrations, is the height of legal
unreasonableness. In other words, according to the majority
Decision, within the limited term of President Aquino, and within the
more severely limited life span of an ad hoc fact-finding committee,
President Aquino must launch his pursuit to eradicate graft and
corruption by fact-finding into all past administrations spanning
multitudes of decades. Truth commissions, of which the PTC
according to Chief Justice Corona is one, are all highly limited in
investigations, statement taking, and transcribing information.32 In
order to be swift and independent, truth commissions operate within
strict time constraints. They are also restricted in the subject matter
they can review.33 This is the real world of truth commissions, not that
imagined by the majority.
The Majority Decision Grievously Omitted the Analytical Process
Required of this Court in Equal Protection Claims
A judicial analysis must not stop at reciting legal doctrines which are
its mere beginning points, but, especially in equal protection claims, it
must move forward to examine the facts and the context of the
controversy. Had the majority taken pains to examine its own cited
cases, it would have discovered that the cases, far from condemning
EO 1, would actually support the constitutionality of the latter.
The majority Decision and the separate opinion of Chief Justice
Corona rely greatly on Victoriano v. Elizalde Rope Workers
124
Union34 for their main doctrinal authority. The Court in that case held
that the questioned classification was constitutional, and it went
through a step-by-step analysis to arrive at this conclusion. To clarify
the kind of analytical process that must go into an examination of the
equal protection claim, let us quote from the case in extenso:
Thirdly, the Union contended that Republic Act No. 3350
discriminatorily favors those religious sects which ban their members
from joining labor unions, in violation of Article III, Section 1(7) of the
1935 Constitution; and while said Act unduly protects certain religious
sects, it leaves no rights or protection to labor organizations.
... that said Act does not violate the constitutional provision of equal
protection, for the classification of workers under the Act depending
on their religious tenets is based on substantial distinction, is
germane to the purpose of the law, and applies to all the members of
a given class...
... All presumptions are indulged in favor of constitutionality;
one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt, that a law may
work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute,
it will be upheld, and the challenger must negate all possible
bases; that the courts are not concerned with the wisdom,
justice, policy, or expediency of a statute; and that a liberal
interpretation of the constitution in favor of the constitutionality
of legislation should be adopted.
... In Aglipay v. Ruiz, this Court had occasion to state that the
government should not be precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable to
a religion or sect...
The primary effects of the exemption from closed shop
agreements in favor of members of religious sects that prohibit their
members from affiliating with a labor organization, is the protection
of said employees against the aggregate force of the collective
bargaining agreement, and relieving certain citizens of a burden
on their religious beliefs; and by eliminating to a certain extent
economic insecurity due to unemployment, which is a serious
menace to the health, morals, and welfare of the people of the State,
the Act also promotes the well-being of society. It is our view
that the exemption from the effects of closed shop agreement
does not directly advance, or diminish, the interests of any
particular religion. Although the exemption may benefit those
who are members of religious sects that prohibit their members
from joining labor unions, the benefit upon the religious sects is
merely incidental and indirect. The "establishment clause" (of
religion) does not ban regulation on conduct whose reason or effect
merely happens to coincide or harmonize with the tents of some or all
religions. The free exercise clause of the Constitution has been
interpreted to require that religious exercise be preferentially aided.
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
125
must apply equally to each member of the class. This Court has
held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not necessary
that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification
be made with mathematical nicety. Hence legislative classification
may in many cases properly rest on narrow distinctions, for the
equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed
to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned
requirements. The Act classifies employees and workers, as to
the effect and coverage of union shop security agreements, into
those who by reason of their religious beliefs and convictions
cannot sign up with a labor union, and those whose religion
does not prohibit membership in labor unions. The classification
rests on real or substantial, not merely imaginary or whimsical,
distinctions...
...The classification, introduced by Republic Act No. 3350, therefore,
rests on substantial distinctions.
The classification introduced by said Act is also germane to its
purpose. The purpose of the law is precisely to avoid those who
cannot, because of their religious belief, join labor unions, from
being deprived of their right to work and from being dismissed
from their work because of union shop security agreements.
Republic Act No. 3350, furthermore, is not limited in its application
to conditions existing at the time of its enactment. The law does
not provide that it is to be effective for a certain period of time
only. It is intended to apply for all times as long as the conditions to
which the law is applicable exist. As long as there are closed shop
agreements between an employer and a labor union, and there are
employees who are prohibited by their religion from affiliating with
labor unions, their exemption from the coverage of said agreements
continues.
Finally, the Act applies equally to all members of said religious
sects; this is evident from its provision. The fact that the law
grants a privilege to members of said religious sects cannot by
itself render the Act unconstitutional, for as We have adverted
to, the Act only restores to them their freedom of association
which closed shop agreements have taken away, and puts them
in the same plane as the other workers who are not prohibited
by their religion from joining labor unions. The circumstance,
that the other employees, because they are differently situated,
are not granted the same privilege, does not render the law
unconstitutional, for every classification allowed by the
Constitution by its nature involves inequality.
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. A classification otherwise reasonable does not
offend the constitution simply because in practice it results in
some inequality. Anent this matter, it has been said that
whenever it is apparent from the scope of the law that its object
is for the benefit of the public and the means by which the
benefit is to be obtained are of public character, the law will be
upheld even though incidental advantage may occur to
individuals beyond those enjoyed by the general public.35
The above analysis is the kind of processed reasoning to which EO 1
should be subjected. The majority Decision falls short of satisfying
this process.
On the first test. Is the classification reasonable, based on
substantial distinctions that make for real difference? The government
has already given several reasons why the distinction between the
administration of President Arroyo is different from other past
administrations. The distinction does not lie in any claim that
corruption is the sole hallmark of the Arroyo administration – far from
it. The distinction lies in reason – administrative constraints,
126
availability of evidence, immediate past acts, non-prescription of
causes of actions – all of which are not whimsical, contrived,
superficial or irrelevant. It must also be emphasized that the Court, as
quoted above, recognizes that in many cases, the classification
lies in narrow distinctions. We have already discussed how in Luna
v. Sarmientothe Court recognized subclasses within a class and
upheld the narrow distinction made by Congress between these
subclasses. So if past administrations have already been the subject
of a fact-finding commission, while one particular administration has
not been so subjected, that alone is a good basis for making a
distinction between them and an administration that has not yet been
investigated. It must be emphasized that the Victoriano case, which
the majority heavily relied on, reiterated that as long as there is a
public benefit to be obtained in a government action, incidental
advantage (and conversely, disadvantage) to a group is not sufficient
to upset the presumption of constitutionality of a government action.
On the second test. The classification is germane to the purpose of
the law – to get a headstart on the campaign against graft and
corruption. If the investigation into the root of corruption is to gain
traction, it must start somewhere, and the best place to start is to
examine the immediate past administration, not distant past
administrations.
On the third test. Of course this is not relevant in this case, for the
law being examined in Victoriano was one that granted prospective
rights, and not one that involves fact-finding into past acts as with EO
1.
On the last test. This asks whether the law applies equally to all
members of the segregated class. It must be emphasized that in
the Victoriano case, this last test was applied not to all the workers in
the bargaining unit, but it was applied to the subclass of workers
whose religions prohibit them from joining labor unions. In application
to this case, the question should then have been, not whether there is
equality of treatment between all political administrations under EO 1,
but whether within the subclass of third level public officials of the
Arroyo administration – that is, the subject of EO 1 – there is unequal
treatment. Obviously, the answer is no. The majority applied the last
test backwards by asking whether there is equality of treatment
among all political administrations and concluding that there was no
equality of treatment, even before it could answer the first test of
whether the classification between the Arroyo administration and
other past administrations was reasonable.
It must be emphasized that the Victoriano case on which the majority
heavily relies states in several parts that classification must
necessarily result in inequality of treatment and that such inequality
does not give rise to a constitutional problem. It is the lack of reason
that gives rise to a constitutional issue, not the inequality per se. To
quote again:
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.
A classification otherwise reasonable does not offend the constitution
simply because in practice it results in some inequality. Anent this
matter, it has been said that whenever it is apparent from the scope
of the law that its object is for the benefit of the public and the means
by which the benefit is to be obtained are of public character, the law
will be upheld even though incidental advantage may occur to
individuals beyond those enjoyed by the general public.36
Selective Investigation, Enforcement and Prosecution
Fact-finding or investigation can only begin by identifying the
phenomenon, event or matter that is to be investigated. Then it can
only proceed if the fact-finder, or the authority under whom he works,
identifies or selects the persons to be investigated.
The validity of the Feliciano Commission created by Administrative
Order No. (AO) 78 of former President Arroyo is affirmed by the
majority Decision. AO 78 zeroed in on the investigation of "the
rebellion of misguided military officers last July (2003)," in order "to
investigate the roots of the rebellion and the provocations that
inspired it," and concludes that "this rebellion is deplorable." AO 78
labeled the officers involved in the July 2003 Oakwood rebellion as
"misguided" and cast their actions as "rebellion" and "deplorable."
President Arroyo selected a class – the officers involved in the July
2003 "rebellion" – in contradistinction to all other all military officers
127
who had ever rebelled against the Republic since its founding. The
acts were stigmatized as acts of "rebellion," a crime punishable by
law. The majority does not condemn this classification made in AO 78
by President Arroyo which uses condemnatory language on the class
of people targeted. In contrast, the language of EO 1 of President
Aquino is mild, willing to grant the administration of President Arroyo
the benefit of the doubt by using adjectives to denote the
tentativeness of the observations on corruption such as "alleged" and
"reported" instead of treating them as actuality. AO 78 is affirmed
while EO 1 is struck down; no explanation for the differing treatment
is made by the majority Decision. This difference in treatment is
disturbing considering the long history of the treatment by courts of
the defense of selective investigation and prosecution.
In fulfilling its duty to execute the laws and bring violators thereof to
justice, the Executive is presumed to undertake criminal prosecution
"in good faith and in a nondiscriminatory fashion."37
The government has broad discretion over decisions to initiate
criminal prosecutions38 and whom to prosecute.39Indeed, the fact that
the general evil will only be partially corrected may serve to justify the
limited application of criminal law without violating the equal
protection clause.40 Mere laxity in the enforcement of laws by public
officials is not a denial of equal protection.41
Although such discretion is broad, it is not without limit.42 In order to
constitute denial of equal protection, selective enforcement must be
deliberately based on unjustifiable or arbitrary classification; the mere
failure to prosecute all offenders is no ground for the claim of a denial
of equal protection.43 To support a claim of selective prosecution, a
defendant must establish a violation of equal protection and show
that the prosecution (1) had a discriminatory effect and (2) was
motivated by a discriminatory purpose.44 First, he must show that "he
has been singled out for prosecution while other similarly situated
generally have not been proceeded against for the type of conduct
forming the basis of the charge against him."45 Second, he must
prove that his selection for prosecution was invidious or in bad faith
and was "based on impermissible considerations such as race,
religion, or the desire to prevent the exercise of constitutional
rights."46 In American constitutional history, it is the traditionally
oppressed – racial or religious minorities and the politically
disenfranchised – who have succeeded in making a case of unequal
protection when their prejudiced status is shown to be the principal
invidious or bad faith consideration for the selective prosecution.
The standard for demonstrating selective prosecution therefore is
demanding: a "presumption of regularity supports prosecutorial
decisions and in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official functions."47
In People v. Dela Piedra,48 the Philippine Supreme Court, adhering to
the precedents set in American jurisprudence, likewise denied the
equal protection argument of an illegal recruiter, who claimed that
others who had likewise performed acts of recruitment remained scot-
free:
The prosecution of one guilty person while others equally guilty are
not prosecuted, however, is not, by itself, a denial of the equal
protection of the laws. Where the official action purports to be in
conformity to the statutory classification, an erroneous or mistaken
performance of the statutory duty, although a violation of the statute,
is not without more a denial of the equal protection of the laws. The
unlawful administration by officers of a statute fair on its face,
resulting in its unequal application to those who are entitled to be
treated alike, is not a denial of equal protection unless there is shown
to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with
respect to a particular class or person, or it may only be shown by
extrinsic evidence showing a discriminatory design over another not
to be inferred from the action itself. But a discriminatory purpose is
not presumed, there must be a showing of "clear and intentional
discrimination." Appellant has failed to show that, in charging
appellant in court, that there was a "clear and intentional
discrimination" on the part of the prosecuting officials.
The discretion of who to prosecute depends on the prosecution's
sound assessment whether the evidence before it can justify a
reasonable belief that a person has committed an offense. The
presumption is that the prosecuting officers regularly performed their
duties, and this presumption can be overcome only by proof to the
contrary, not by mere speculation. Indeed, appellant has not
presented any evidence to overcome this presumption. The mere
128
allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in
appellant's eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal protection of the laws.
(Emphasis supplied)
In the instant case, the fact that other administrations are not the
subject of the PTC’s investigative aim is not a case of selective
prosecution that violates equal protection. The Executive is given
broad discretion to initiate criminal prosecution and enjoys clear
presumption of regularity and good faith in the performance thereof.
For petitioners to overcome that presumption, they must carry the
burden of showing that the PTC is a preliminary step to selective
prosecution, and that it is laden with a discriminatory effect and a
discriminatory purpose. However, petitioner has sorely failed in
discharging that burden.
The presumption of good faith must be observed, especially when the
action taken is pursuant to a constitutionally enshrined state policy
such as the taking of positive and effective measures against graft
and corruption.49 For this purpose, the President created the PTC. If a
law neither burdens a fundamental right nor targets a suspect class,
the Court must uphold the classification, as long as it bears a rational
relationship to some legitimate government end.50
The same presumption of good faith and latitude in the selection of
what a truth commission must fact-find must be given to the
President. Too wide a mandate would no doubt drown the
commission in a sea of history, in the process potentially impeding
the more forward-looking aspects of its work.51 To require the PTC to
look into all acts of large-scale corruption in all prior administrations
would be to make truth-telling overly comprehensive, resulting in a
superficial fact-finding investigation of a multitude of allegations
without depth and insightful analysis. The Philippines’ past
experience with ad hoc investigating commissions has been
characterized by a focus on the truth regarding a key period or event
in our collective history and by a reasonable time frame for achieving
their purpose, i.e., the assassination of Ninoy Aquino,52 the 1989 coup
d’état,53 the 2003 Oakwood mutiny,54 the extra-judicial killings of
media and activists,55 and private armed groups.56
Here, petitioners who are not even the injured parties are invoking the
equal protection clause. Their standing to raise this issue is seriously
contested in the Dissent of Justice Carpio Morales. They do not claim
in any manner that they are the subject of EO 1. Courts have warned
that the right of equal protection of the law "may not be perversely
invoked" to justify desistance by the authorities from the prosecution
of a criminal case, just because not all of those who are probably
guilty thereof were charged.57 This characterization would apply
especially if the ones who invoke the equal protection clause are
those who are not injured by the contested executive action.
EO 1 activities are at most initiatory investigations. There is no
preliminary investigation – much less prosecution – to be conducted
under the auspices of EO 1. The PTC is tasked to "collect, receive,
review and evaluate evidence related to or regarding the cases of
large scale corruption,"58 tasks that constitutes nothing more than a
general inquiry into such reported cases in the previous
administration. Similar to an initiatory police investigation, the PTC is
tasked with general fact-finding to uncover the truth of the events
pertaining to an alleged unsolved crime. To strike down the PTC’s
mandate to investigate the previous administration simply because
other administrations are not immediately included is tantamount to
saying that a police investigation of a recent murder case is violative
of equal protection because there are other prior yet equally heinous
murders that remain uninvestigated and unsolved by the police.
What renders the plaint regarding an alleged violation of the equal
protection clause ridiculous is that it is being raised at the inception
stage for the determination of possible criminal liability, where threat
to liberty is most absent. In contrast, with respect to petitions to stop
later and more freedom-threatening stages in the determination of
criminal liability such as in formal criminal investigations and
prosecutions, Philippine courts instinctively reject the defense of a
suspect or accused that the investigation is illegitimate because
others who may have also violated the relevant rule, are not being
investigated.59 In Gallardo v. People,60 the Supreme Court held that
there was no violation of the equal protection clause when the
Ombudsman recommended the filing of an information against a
public officer, even if it had previously dismissed sixteen (16) other
cases of similar factual circumstances:
129
The contention that petitioners’ right to equal protection of the law has
been transgressed is equally untenable. The equal protection clause
requires that the law operates uniformly on all persons under similar
circumstances or that all persons are treated in the same manner, the
conditions not being different, both in privileges conferred and the
liabilities imposed. It allows reasonable classification. If the
classification is characterized by real and substantial differences, one
class may be treated differently from another. Simply because the
respondent Ombudsman dismissed some cases allegedly similar to
the case at bar is not sufficient to impute arbitrariness or caprice on
his part, absent a clear showing that he gravely abused his discretion
in pursuing the instant case. The Ombudsman dismissed those cases
because he believed there were no sufficient grounds for the accused
therein to undergo trial. On the other hand, he recommended the
filing of appropriate information against petitioners because there are
ample grounds to hold them for trial. He was only exercising his
power and discharging his duty based upon the constitutional
mandate of his office. Stated otherwise, the circumstances obtaining
in the numerous cases previously dismissed by the Ombudsman are
entirely divergent from those here existing. (Emphasis supplied)
Even on the assumption that the recommendation of the PTC is that
acts of graft and corruption were indeed committed by the Arroyo
administration, there is still a long way to go before the
recommendation would ripen to criminal prosecution, much less
conviction. The Ombudsman must accept the referral and conduct its
own preliminary investigation. It must find probable cause, then file
the appropriate information. The Court must then preside over a
criminal trial at which the findings of the PTC have no conclusive
effect on the Court’s ultimate judgment, in the same way they treated
the findings of the Davide Commission in Kapunan v. Court of
Appeals:61
We do not wish to denigrate from the wisdom of the Davide
Commission. However, its findings cannot be deemed as conclusive
and binding on this Court, or any court for that matter. Nothing in R.A.
No. 6832 mandates that the findings of fact or evaluations of the
Davide Commission acquire binding effect or otherwise countermand
the determinative functions of the judiciary. The proper role of the
findings of fact of the Davide Commission in relation to the judicial
system is highlighted by Section 1 (c) of R.A. No. 6832, which
requires the Commission to ‘[t]urn over to the appropriate
prosecutorial authorities all evidence involving any person when in
the course of its investigation, the Commission finds that there is
reasonable ground to believe that he appears to be liable for any
criminal offense in connection with said coup d'état.’
Whatever factual findings or evidence unearthed by the Davide
Commission that could form the basis for prosecutorial action still
need be evaluated by the appropriate prosecutorial authorities to
serve as the nucleus of either a criminal complaint or exculpation
therefrom. If a criminal complaint is indeed filed, the same findings or
evidence are still subject to the normal review and evaluation
processes undertaken by the judge, to be assessed in accordance
with our procedural law. (Emphasis and underscoring supplied)
Who Fears the Truth?
Truth commissions operate on the premise that the truth – if faced
squarely, documented thoroughly, and acknowledged officially – will
reduce the likelihood that a repetition of government abuses will recur
in the future.62Official acknowledgment of the truth is extremely
powerful in the healing process, especially in an atmosphere
previously dominated by official denial.63 Aside from their cathartic
value, truth commissions like the PTC can be useful in uncovering the
causes and patterns that led to such corruption, if it indeed existed,
so that it may be prevented in the future. The absence of any form of
accountability for public officials’ past misconduct of a grave nature
and massive scale will promote a culture of impunity. If the present
administration does not demonstrate that it can hold accountable
persons who committed acts of corruption, such inability may be
interpreted as a "license to engage in further acts of corruption"64 and
embolden public officials to steal from the government coffers more
often and in greater quantity.
The Concurring Opinion of my esteemed colleague Justice Brion
speaks to the fear that the PTC would be a mind-conditioning
commission such that if the Ombudsman, the Sandiganbayan or the
Supreme Court itself were to reject the PTC’s findings, they would
incur the ire of the people. The potential imminence of public wrath
would thus serve as a deterrent to rejection (and an incentive to
acceptance) of the findings of the PTC. He regards the release of the
130
conclusions of the PTC as a "priming" mechanism upon the public,
the Ombudsman and the Court to concur with the PTC’s way of
thinking. He objects to the PTC’s appropriation of the word "truth" and
assumes that all conclusions contrary to the PTC’s would be more
likely labeled as "untruth." According to the Concurring Opinion,
because President Aquino is highly trusted by Filipinos, then
repeated "truth" from him or his government would be believed,
wholesale and with finality, by a credulous people. This would thus,
the Concurring Opinion states, bring undue pressure to bear on the
Ombudsman, the Sandiganbayan, and the Supreme Court: in the
event of any of these bodies "go[ing] against the Commission’s
report," the consequent public perception that said body sided with an
"untruth" would compromise "the authority, independence, and even
the integrity of these constitutional bodies ... to the prejudice of the
justice system."65 Justice Brion theorizes that, in the light of the
potential of the Commission’s influence to "prime the public" and "go
beyond the level of priming" in a way that "can affect the public
environment as well as the thinking of both the decision makers in the
criminal justice system and the public in general," the PTC’s primary
role is "negated in actual application by the title Truth Commission
and its truth-telling function."66According to the Concurring Opinion,
this renders the Commission an "unreasonable means to a
reasonable objective."67 I believe these arguments betray a very poor
view of the Filipino people and that this view lies at the root of his
"due process" problem.
Woven as binding threads throughout the Concurring Opinion are a
denial of an imbalance of power and an unwillingness to see it shift in
favor of a weaker group seeking redress for the perpetration of
injustice against its members. It is an oft-observed phenomenon that
when there are attempts to address past abuses committed by a
powerful group, and when steps are taken to rectify the systemic
inequalities, members of the powerful group decry the threats
represented by these efforts to rebalance the scales. In this manner
cries and accusations of reverse "discrimination" and "persecution"
are raised by persons who have to answer to the demands of those
seeking the righting of past wrongs. This reaction may be viewed as
part of a larger pattern of backlash, meant to both "lash back" against
those perceived to be behind the threat to the security of power and
to return the system to the state it occupied before attempts to seek
redress were made.68 In the United States, this pattern is evident in
various bills, policies and initiatives – from the campaign rhetoric of a
presidential contender, immigration bills, and laws on language to
university admissions policies – that aim to challenge and minimize
any gains made by disadvantaged and subordinated groups over the
past years.69
To be sure, the differences both in history and circumstance, between
the backlash experienced by various disprivileged groups in the U.S.
and the situation at hand, are not insignificant. However, the parallels
that can be drawn are striking and unsettling. In our present context,
it is the Filipino people – a great majority of whom have been
disprivileged by institutions that heavily favor the ruling elite – that
have suffered the damaging consequences of graft and corruption. It
is the Filipino people who have been wronged by past abuses and
systematic inequality; and it is they who now desire justice in truth. In
the Philippine context, the pre-redress state was that of an imbalance
so great it allowed the immunity of past high officials (the privileged
class) from public accountability; members from such group will try to
return to that state by seeking to continue eluding accountability.
By ignoring the Filipino public’s experience as a witness to the
frustration of attempts to hold the past administration accountable for
its reported misdeeds, and framing it instead as a group that stands
ready to convict past officials at the bar of public opinion, the
Concurring Opinion turns social reality on its head. It minimizes the
status of the Filipino people as a group wronged by the imbalance of
power and the betrayal of public trust. It ignores the need of this
group to see these rectified. It ascribes an excess of strength to
public opinion and grounds its logic on fear of the public acting as an
angry mob. It does not attribute the proper importance to the active,
participatory role the Filipino people desire to take in the process of
dealing with the possible misdeeds of the past.
Implicit in Justice Brion’s Concurring Opinion are the roles the public
is expected to take: that of passive observer, receiver of information
and susceptible to the branding of "truth" and its repetition;70 and that
of a source of pressure. In the latter role, the Concurring Opinion
envisions the Filipino people, having adjudged guilt according to what
it was told by the PTC and the media, wielding the threat of public
disapproval against the Ombudsman and the judiciary so as to shift
131
the burden to these bodies to demonstrate proof and the basis for
their actions if they were to disagree with the findings of the PTC.71
This is gross speculation. It does not follow that repetition of
information guarantees the acceptance of its veracity; to make that
logical leap in this instance is to insinuate that repetition would rob
the Filipino people of the capacity to make distinctions between what
to accept and what to reject. Neither does it follow that the
Ombudsman and the judiciary must inevitably accede to public
clamor, or that the entry of public opinion into the discussion would
cause a "qualitative change in the criminal justice system" and
weaken "reliance on the law, the rules and jurisprudence."72
The public does not need sheltering from the "potentially prejudicial
effects of truth-telling." Nor is the public to be viewed as unwitting
victims to "a noisy minority [who] can change the course of a case
simply because of their noise and the media attention they get."73 The
Filipino people have a genuine stake in the addressing of abuses
possibly committed by the past administration and are entitled to
information on the same.
Striking down efforts to give the public information regarding the
misdeeds of powerful officials sends a signal of the continuing
dominance of "might makes right" and the futility of attempting to hold
public officials accountable for their actions. Conversely, by carrying
out investigations of the past actions of public officials, and by holding
up its results to public scrutiny and criticism, the government
reinforces respect for the rule of law and educate the people on the
nature and extent of past wrongdoing.74 Moreover, the
characterization of public discussion – the "second forum" – as an
inappropriate venue for the release of the PTC's findings devalues
the utility and meaning that truth possesses for the aggrieved group,
and denigrates the need for the construction and repair of the group’s
collective memory. Indeed, the Concurring Opinion implies that the
PTC's influence on public perceptions – and consequently the
shaping of the collective memory of Filipinos – will only instigate more
injustice.
To the contrary, the need to shape collective memory as a way for
the public to confront injustice and move towards a more just society
should not be diminished or denied. The Concurring Opinion
disregards the significance to justice of what is seen and
remembered and eliminates the vital role of the people themselves in
"constructing collective memories of injustice as a basis for
redress."75 This disregard need not prevail. There is much value to be
found in memory, as Hom and Yamamoto recounted:
For many of the 10,000 Philippine citizens tortured and murdered for
their political opposition to the former Ferdinand Marcos regime,
reshaping memory became both a means to challenge injustice and a
psychological end in itself. Consider the anguish of the family of
Archimedes Trajano, a college student who posed a mildly critical
question to Marcos's daughter at a forum and was whisked away,
tortured for days, and thrown off a building. For his family, and
thousands of others, there existed the need to create a new memory
beyond the excruciating story of personal loss and suffering – a
memory that included a sense of social justice and government
accountability. To write this new memory collectively, many families,
lawyers, bureaucrats risked much in the Philippines to aid the
thirteen-year human rights multidistrict class action litigation in the
United States.76
While it is true that public opinion will be influenced by the information
that the public can access, it would be specious to claim that the
possible turning of the tide of public opinion against those subject to
investigation is tantamount to a conviction before the court of the
Filipino people. To declare the Filipino public undeserving of the truth
on the grounds of its supposed lack of capacity to deal with the truth
and its alleged susceptibility to the "priming" effect of the PTC's
findings, while ignoring the public’s need to know the truth and to
seek redress for wrongs, is to deny the public the means to move
towards social justice.
In Razon v. Tagitis,77 the Court, speaking through no less than Justice
Brion himself, affirmed the grant of the Writ of Amparo petitioned by
the wife of Engineer Morced Tagitis, and touched on the "the right of
relatives of the disappeared persons and of the society as a
whole to know the truth on the fate and whereabouts of the
disappeared and on the progress and results of the
investigation," as expressed in the United Nations Declaration on
the Protection of All Persons from Enforced Disappearance. It would
be inconsistent for this Court not to afford the same level of openness
132
and accountability in enforced disappearances of individuals to
allegations of criminal acts of massive corruption committed against
the entire Philippine nation, under the fundamental premise of Razon
v. Tagitis that the Filipino have the right to know and can handle the
truth. The public’s right to know78 and the concomitant public policy of
full public disclosure79 support the fact-finding mandate of the PTC to
uncover the truth of these allegations and reports in the Arroyo
administration.80 Justice Brion’s Concurring Opinion does not lay
down enough legal basis for his argument that the PTC has to be
struck down due to the possibility of bias to be created in the public
mind through public reports of the PTC and the inordinate pressure
this bias will bring on the Ombudsman and the judiciary. The
Philippine judiciary has had more than a century’s worth of
experience dealing with judicial cases and criminal investigations
under the harsh light of public scrutiny, yet not one case or
investigation has been stopped on the simple basis of the public
forming a strong opinion on them and voicing this opinion in a loud
manner.81 A judge is expected to act impartially and independently,
under any set of circumstances, with or without the public as witness.
This is the role of a judge and if the neutrality required of a judge is
not maintained, the fault lies not in the creation of a fact-finding
commission that started the search for truth, but in the judge’s
character. To this end, the statement of the Court in People v.
Sesbreño82 on undue publicity and its effect on the right of the
accused is worth recalling:
x x x Besides, a thorough review of the records yields no sufficient
basis to show that pervasive publicity unduly influenced the court's
judgment. Before we could conclude that appellant was prejudiced by
hostile media, he must first show substantial proof, not merely cast
suspicions. There must be a showing that adverse publicity indeed
influenced the court's decision, as held in Webb v. De Leon, 247
SCRA 653 (1995) and People v. Teehankee, 249 SCRA 54 (1995).
"[T]o warrant a finding of prejudicial publicity there must be allegation
and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity."
"Pervasive publicity is not per se prejudicial to the right of an accused
to fair trial. The mere fact that the trial of appellant was given a day-
to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of the
members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication
system brings news as they happen straight to our breakfast tables
and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair
and impartial judge is not that of a hermit who is out of touch with the
world. We have not installed the jury system whose members are
overly protected from publicity lest they lose their impartiality. . . . Our
judges are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to a litigation. Their
mere exposure to publications and publicity stunts does not per se
infect their impartiality.
"At best appellant can only conjure possibility of prejudice on the part
of the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et
al., we rejected this standard of possibility of prejudice and adopted
the test of actual prejudice as we ruled that to warrant a finding of
prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by
the barrage of publicity. In the case at bar, the records do not show
that the trial judge developed actual bias against appellant as a
consequence of the extensive media coverage of the pre-trial and
trial of his case. The totality of circumstances of the case does not
prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable of change even by evidence
presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden. (Italics in the
original)"
Absent a persuasive showing by the appellant that publicity
prejudicial to his case was responsible for his conviction by the trial
judge, we cannot accept his bare claim that his conviction ought to be
reversed on that ground.
Justice Cardozo, the Judge and Society
In his Concurring Opinion, Justice Brion quotes Justice Benjamin
Cardozo of the United States Supreme Court in the context of "what
133
the repeated" "truth from a generally trusted government can
achieve" and "the effect of outside influence on judging." The
Concurring Opinion uses quotations from Justice Cardozo's
book, The Nature of the Judicial Process, to drive home its points on
how "the Commission's influence can go beyond the level of priming
and can affect the public environment as well as the thinking of both
the decision makers in the criminal justice system and the public in
general" and on the "potential prejudicial effects of truth-telling."83
The source of the quotations featured in Justice Brion's Concurring
Opinion is entitled "Adherence to Precedent. The Subconscious
Element in the Judicial Process. Conclusion," fourth in a series of
lectures delivered by Justice Cardozo at Yale University and
subsequently published as a book. In the lecture, Justice Cardozo
spoke about the gaps left by absence of precedents in systems of
law, the development of principles to address these gaps, and
adherence to the rule of precedent. With regard to the latter he
expressed his belief that "when a rule, after it has been duly tested by
experience, has been found to be inconsistent with the sense of
justice or with the social welfare, there should be less hesitation in
frank avowal and full abandonment."84 Building on this principle, he
discussed the rule of precedent in application, and from there went on
to survey judicial methods, comparing "static" with "dynamic"
precedents, narrating his personal struggles first to find certainty,
then to reconcile himself with uncertainty.
Throughout all this, one forms the image of a man fully aware of the
doubts and tensions that beset a judge, keenly cognizant of the
limitations of his position and the temporal nature of even those
principles of whose development he earlier spoke: "I have grown to
see that the process in its highest reaches is not discovery, but
creation; and that the doubts and misgivings, the hopes and fears,
are part of the travail of mind, the pangs of death and the pangs of
birth, in which principles that have served their day expire, and new
principles are born."85
Justice Cardozo was also conscious of the close intertwining between
a judge's philosophy and the judicial process, in his analysis of
Roosevelt's statement on the philosophy of judges, the timeliness of
their philosophy, and the impact of the same on the decisions of the
courts.86 It is due to the limits of human nature, Justice Cardozo
conceded, that the ideal of "eternal verities" is beyond the reach of a
judge; thus it is impossible to completely eliminate the "personal
measure of the [judicial] interpreter." Of such personal measures and
the signs of the times he wrote: "My duty as judge may be to objectify
in law, not my own aspirations and convictions and philosophies, but
the aspirations and convictions and philosophies of the men and
women of my time. Hardly shall I do this well if my own sympathies
and beliefs and passionate devotions are with a time that is past."87
It is clear that Justice Cardozo did not expect a judge to cut himself
completely off from the pressures, forces, and beliefs of his society –
far from it. "We may figure the task of the judge, if we please, as
the task of a translator, the reading of signs and symbols given
from without,"88 he went on to say. Indeed, the first lines of the
paragraph quoted in Justice Brion's Concurring Opinion89 state: "I
have no quarrel, therefore, with the doctrine that judges ought to
be in sympathy with the spirit of their times."90 Justice Cardozo
did not regard the influence of "the truth without us" on the shaping of
individual beliefs as harmful in and of itself, nor did he say that judges
must be completely free of outside influences. He spoke of the effect
the thinking of the group could play in the thinking of the individual,
and how these factors and influences, as part of human nature, might
play out in the judicial process, without considering such effect as a
problem. He wrote, following his quoting of James Harvey Robinson,
that "[t]he training of the judge, if coupled with what is styled the
judicial temperament, will help in some degree to emancipate him
from the suggestive power of individual dislikes and prepossessions.
It will help to broaden the group to which his subconscious loyalties
are due. Never will these loyalties be utterly extinguished while
human nature is what it is."91
Accepting fully the flaws inherent in human nature and the
"eccentricities of judges," optimistic in the belief that "because [the
flaws] are not only there but visible, we have faith that they will be
corrected,"92 Justice Cardozo concluded with words on the temporal
nature of the work of a judge: "The work of a judge is in one sense
enduring and in another sense ephemeral. What is good in it
endures. What is erroneous is pretty sure to perish." It was in this
sense – the building of new structures upon good foundations, the
rejection of errors as they are determined by the years – that Justice
Cardozo wrote the lines that constitute the second excerpt quoted in
134
Justice Brion's Concurring Opinion. Preceding Justice Cardozo's
quoting of Henderson, he wrote: "Little by little the old doctrine is
undermined. Often the encroachments are so gradual that their
significance is at first obscured. Finally we discover that the contour
of the landscape has been changed, that the old maps must be cast
aside, and the ground charted anew."93 It was change – in the spirit of
the times, in the principles underpinning the judicial process, in the
personal and very human beliefs of individual judges – that Justice
Cardozo spoke of in this passage. It does not speak of damage
wrought by societal influence, nor of destructive or prejudicial
effects due to shifts in public opinion and belief, but rather of
how law develops and changes. Indeed, Justice Cardozo ends on
a note rich with hope in change:
Ever in the making, as law develops through the centuries, is this new
faith which silently and steadily effaces our mistakes and
eccentricities. I sometimes think that we worry ourselves overmuch
about the enduring consequences of our errors. They may work a
little confusion for a time. In the end, they will be modified or
corrected or their teachings ignored. The future takes care of such
things. In the endless process of testing and retesting, there is a
constant rejection of the dross, and a constant retention of whatever
is pure and sound and fine.94
Truly, the role of the judge is to do his utmost to exercise his
independence, even against overwhelming pressure, to uphold the
rule of law. But simply because the possibility exists that the judiciary
may go along with a public that is hungry for the truth does not mean
we do not allow the truth to be found out. As we can see from a
reading of Justice Cardozo's lecture, we need not fear societal
influences and forces. The "truth without us" does not negate the
validity of "the truth within."
Appropriateness of Establishing a "Truth" Commission
In his Concurring Opinion, Justice Brion raises the points that: (1) the
term "truth commission" is usually reserved for a body "investigating
the human rights violations that attended past violence and
repression, and in some instances for a body working for
reconciliation in society," and (2) reconciliation is not present as one
of the goals of the PTC95. These two points, according to the
Concurring Opinion, further distance the PTC from other truth
commissions; the latter point in particular thereby "remov[es] a
justification for any massive information campaign aimed at healing
divisions that may exist in the nation."96
To arrive at this conclusion is to place unwarranted restrictions on the
definitions and functions of bodies bearing the name of "truth
commission." While many truth commissions have indeed been
established in the wake of a violent conflict leading to a transition
between two regimes, this does not preclude that truth commissions
in some countries may be used for circumstances that do not
duplicate the violence of the conflict or the character of the regime
transition in other countries. The needs of various countries differ and
consequently determine a great deal of variation in the fundamental
goals, purposes, and characteristics of the bodies they establish, to
deal with the abuses of previous administrations.97 David Crocker
puts forth the view that even nations other than new democracies
may see the need for ways to "reckon with past wrongs," and
classifies these other nations into three broad categories: (1) post-
conflict societies aspiring to transition to democracy, but occupied
with pressing security issues; (2) authoritarian and conflict-ridden
societies; (3) mature democracies that are reckoning with abuses
their own governments may have committed in the past.98 The
Philippine context does not, therefore, close off the avenue of a truth
commission as a permissible means to address past abuses.
Likewise, a definition that expects reconciliation as a requisite goal for
the PTC99 is an unduly narrow definition.
Another argument raised in Justice Brion’s Concurring Opinion refers
to the EO 1’s creation of the PTC as a "shortcut to the emergence of
truth"100 – one which should not be taken as it "bypass[es] processes
established by the Constitution and the laws." Because it deems "the
international experiences that give rise to the title Truth Commission"
as not applying to the present Philippine situation and claims there is
no need for "quick transitional justice," the Concurring Opinion
reasons that "there is no need to resort to... institutions and
mechanisms outside of those already in place."101 In other words, only
the Ombudsman and the judiciary have the rightful duopoly on truth-
finding and truth-telling in graft and corruption cases.
135
Yet the justifications for the use of truth commissions are not confined
only to certain post-conflict scenarios or the absence of functioning
judicial systems. Even in some contexts where there is a judicial
system already in place, a truth commission may be used by the
government as a redress mechanism.102 There are numerous reasons
prosecution and other means usually undertaken within the judicial
system may not be viable. There may be too many incidents to
prosecute; due to the atmosphere of secrecy in which abuses took
place, evidence may be insufficient for a criminal
conviction.103 Current political policies, as well as concerns about
vengeance and the resulting societal tensions, may also make
prosecution difficult or impossible.104 The element of time may also be
a significant factor.105 In addition, some of the aims of truth
commissions may be outside the purview of courts, as in the case of
giving an account of events that transpired: "A court is not supposed
to give an account about the circumstances of the historic, economic,
and political reasons for a crime, nor about the involvement of
different groups in the society or political influence from the outside
which may have encouraged the perpetrators... Giving an account,
providing explanations, and offering recommendations for a better
future are exactly the purposes of a truth commission."106 Means of
redress attempted within the confines of the judicial system may also
not be viable precisely because of elements influencing the system
itself. Officials allied with the previous regime may also still retain
power, and through various means hinder proceedings undertaken
within the judicial system.
This last point regarding situations wherein the former regime still
possesses a certain degree of influence over the system is especially
salient in the light of state capture. According to the World Bank, state
capture may be treated as akin in essence to regulatory capture as it
is used in economics literature: state regulatory agencies are
considered "captured" when they "regulate businesses in accordance
with the private interests of the regulated as opposed to the public
interest for which they were established." State capture, then,
encompasses the state’s "capture" as evinced in the "formation of
laws, rules, and decrees by a wider range of state institutions,
including the executive, ministries and state agencies, legislature,
and the judiciary."107 State capture alters the "rules of the game" in
favor of those who have captured the state. While state capture
encompasses a variety of situations, its fundamental characteristic is
that it is channeled through illicit, informal, and non-transparent
means of providing private gains to public officials as incentives for
these very officials to influence the formation of laws and prejudice
the rules to these captors’ narrow advantage.108 If public officials are
perceived to have been captured, the credibility of official processes –
such as rendering decrees, forming laws, and shaping policies – will
suffer. It is not difficult to see how state capture may render traditional
means such as prosecution completely ineffective against those who
may have captured the state.
To that end, S. Sandile Ngcobo writes:
...many transitional governments do not represent a complete
break with the past. In some cases, members of the police and
security forces that were responsible for heinous acts under the old
regime remain in influential positions. Their numbers and their
continued control of deadly weapons provide them with the capability
to undermine the peaceful transition. Their continued influence may
threaten the new democratic order, making prosecutions both
undesirable and impractical. Given these realities, the emerging
democracy may be compelled to look for alternative approaches. At
this point, a truth commission may become an attractive
option.109 (Emphasis supplied.)
It is true that in the Philippine context we may not be speaking of a
past regime’s continuing control of guns and armed men; but power,
in any form, is power. In any event, the appropriateness of naming
the PTC as a "truth commission" is not a legal argument for its
invalidation, as Justice Brion himself conceded.
Unlawful Discrimination is not an Argument of the Powerful; the
Phenomenon of State Capture
Unlawful discrimination, as shown in American cases on equal
protection claims in criminal investigation and prosecution, is not
inherently an argument of the powerful, but that of the traditionally
oppressed. This is because the politically powerful, as in the past
administration, still contain all the advantages that such past formal
political power begot. It is the height of incongruity that an
administration that held power for nine years, successfully evaded all
136
congressional investigations, and effectively invoked all legal
defenses from investigation for all those nine years will be extended
the same immunity that the former presidential office gave it. The
Philippines will be the laughing stock of the world, incapable of
correcting any error, unable to erase the perception by many that it is
a country where the law only serves the ends of the powerful.
If evidence will later turn out, congruent to the theory of some
quarters as intimated by the Solicitor General during the oral
arguments, that the reason that former President Arroyo and her
closest relatives and officials have not been prosecuted by the
present Ombudsman is because the Ombudsman is not independent
but is acting out of loyalty for her appointment to the position, then
such evidence reinforces the immoral political lesson that the misuse
of the law and the power of appointment can be purposively
committed to create a strong shield of immunity from accountability.
With or without such evidence, however, and especially because the
belief in the non-independence of the Ombudsman is openly
expressed by people, the only way for this Court to not abet such a
plan if such a plan indeed existed on the part of Arroyo
administration, is to allow the people to exact accountability upon
those from whom accountability is due. It must let the President fulfill
his promise to the people, and if the President believes that the best
way for him is to start from fact-finding into the past administration,
then he must be allowed to do so without unconstitutional judicial
restraint.
The "Least Dangerous" Branch
The majority took pains to reiterate the honorable role of the Court in
exercising the constitutional and awesome power of judicial review,
amidst the recent string of rebukes against the initiatives of the
legislature and elected executives – democratically elected
representatives of the people.
In the seminal book "The Least Dangerous Branch: The Supreme
Court at the Bar of Politics," Alexander M. Bickel expounded on the
"counter-majoritarian difficulty"110 of judicial review exercised by an
unelected court to declare null and void an act of the legislature or an
elected executive in this wise:
The root difficulty is that judicial review is a counter-majoritarian force
in our system. x x x when the Supreme Court declares
unconstitutional a legislative act or the action of an elected executive,
it thwarts the will of representatives of the actual people of the here
and now; it exercises control, not in behalf of the prevailing majority,
but against it. That, without mystic overtones, is what actually
happens. It is an altogether different kettle of fish, and it is the reason
the charge can be made that judicial review is undemocratic.111
Bickel’s "counter-majoritarian difficulty" is met by the argument that
the Court’s duty is to uphold the Constitution, that in determining the
"boundaries of the great departments of government" is not to assert
superiority over them but merely to assert its solemn and sacred
obligation to determine conflicting claims of authority under the
Constitution.112
If the Court is to avoid illegitimacy in its actions as suggested by
Professor Bickel, then it must ensure that its discharge of the duty to
prevent abuse of the President’s executive power does not translate
to striking down as invalid even a legitimate exercise thereof,
especially when the exercise is in keeping with the will of the
people.113Invalidating the PTC is an unconstitutional denial of the
legitimate exercise of executive power and a stinging reproach
against the people’s sovereign right. Sadly, there is a wide fissure
between the public’s hunger for governance justice through the
successful delivery by President Aquino of his promise to get behind
the stories on corruption of the former administration, and the Court’s
confirmation of an alleged violation of former President Arroyo’s equal
protection right. To emphasize, it is not even former President Arroyo
who is officially raising this matter before the Court.
Rather than exercise judicial restraint, the majority has pushed the
boundaries of judicial activism bordering on what former Chief Justice
Puno once described as an imperial judiciary:
"[T]he Court should strive to work out a constitutional equilibrium
where each branch of government cannot dominate each other, an
equilibrium where each branch in the exercise of its distinct power
should be left alone yet bereft of a license to abuse. It is our hands
that will cobble the components of this delicate constitutional
equilibrium. In the discharge of this duty, Justice Frankfurter requires
137
judges to exhibit that ‘rare disinterestedness of mind and purpose, a
freedom from intellectual and social parochialism.’ The call for that
quality of "rare disinterestedness" should counsel us to resist the
temptation of unduly inflating judicial power and deflating the
executive and legislative powers. The 1987 Constitution expanded
the parameters of judicial power, but that by no means is a
justification for the errant thought that the Constitution created
an imperial judiciary. An imperial judiciary composed of the
unelected, whose sole constituency is the blindfolded lady without the
right to vote, is counter-majoritarian, hence, inherently inimical to the
central ideal of democracy. We cannot pretend to be an imperial
judiciary for in a government whose cornerstone rests on the doctrine
of separation of powers, we cannot be the repository of all
remedies."114 (Emphasis supplied)
When forgotten, history does have a tendency to repeat
itself.115 Unless an official and comprehensive narrative of findings of
fact on large-scale corruption that reportedly occurred during the
previous administration is made public, the country may find the
same alleged patterns of corruption repeating themselves. Worse,
public officials subject of the investigation – and who may actually be
guilty – with continued possession or access to power may spin these
events and cause a revision of our history to make those allegations
of wrongdoing appear nothing more than unsubstantiated rumors
whispered in secret and perpetuated by bitter opponents. The PTC is
a step towards national healing over a sordid past. The Court must
allow the nation to move forward and the people’s faith in a just and
accountable government to be restored.
MARIA LOURDES P. A. SERENO
Associate Justice
Footnotes
1
Decision, at p. 43.
2
This is discussed in the part of this Opinion on "The Majority
Decision’s Turn-Around."
3
Decision at p. 3. Ramos. But to impose this standard is the height of legal
unreasonableness and the worst form of judicial overreach.
4
Id.
19
G.R. No. L-63915, 29 December 1986, 146 SCRA 446.
5
Id. at p. 24.
20
Decision at p. 36.
6
Id. at p. 23.
21
SECTION 17. Special Provision Concerning Mandate. If
7
Id. at p. 25. and when in the judgment of the President there is a need to
expand the mandate of the Commission as defined in Section
8
Decision at p. 35. 1 hereof to include the investigation of cases and instances of
graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a
9
Id. at 3.
supplemental Executive Order.
10
5 U.S. 137 (1803). 22
G.R. No. 189698, 22 February 2010.
11
Decision at p. 3. 23
Nixon v. Administrator of General Services, 433 US 425
cited in Am. Jur. 2d, Vol. 16(b), p. 371; Hunter v. Flowers, 43
12
Decision at p. 24. So. 2d 435 cited in Am. Jur. 2d, Vol. 16(b), p. 370; Clements
v. Fashing, 457 U.S. 957.
13
The majority Decision clarifies that investigation of
deceased presidents, cases which have already prescribed 24
Decision at p. 36.
and simultaneous investigations of previous administration
are not expected of the PTC. (Decision at p. 37) 25
Despite the attempt of the majority Decision to make it
appear that it is not unreasonable in requiring an all-
14
Decision at p. 37. comprehensive coverage when it says that it does not require
the impossible, the fact that it keeps on insisting that all past
15
Decision at p. 43. administrations must be included in the coverage of EO 1 give
basis for the opinion that the Decision indeed requires
16
Id. at pp. 37-38. coverage spanning at least 6 decades, and even perhaps, a
century. See Dissent of J. Carpio.
17
I submit that the majority Decision must have intended to
refer to all officials of past presidents, and not only to the 26
Decision, at pp. 29-40.
Presidents themselves.
Decision at p. 39, citing McDonald v. Board of Election
27
18
Unless the Court is impliedly saying that the reported Com’rs of Chicago, 394 US 802 cited in AM. Jur 2d, note 9.
crimes that are the earliest in point of time are the ones that
must be prioritized, i.e., reported crimes committed during the 28
G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
administrations of Presidents Corazon Aquino and Fidel

138
29
G.R. No. L-3538, 28 May 1952, 91 Phil. 371. 41
Application of Finn, 356 P.2D 685 (1960).

30
G.R. No. 163583, 20 August 2008, 562 SCRA 511. 42
United States v. Wayte, 470 US 598, 608 (1995).

31
"All in all, the classification freeze provision addressed 43
Bell v. State, 369 So.2d 932 (1979).
Congress’s administrative concerns in the simplification of tax
administration of sin products, elimination of potential areas 44
United States v. Armstrong, supra, 517 U.S. 456, 465
for abuse and corruption in tax collection, buoyant and stable (1996).
revenue generation, and ease of projection of revenues.
Consequently, there can be no denial of the equal protection 45
United States v. Furman, 31 F.33 1034, 1038 (10th Cir.
of the laws since the rational-basis test is amply satisfied." 1994), quoting United States v. Salazar, 720 F.2d 1482, 1487
(British American Tobacco v. Camacho, id.) (10th Cir. 1983).
32
Matiangai Sirleaf, Regional Approach to Transitional 46
United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir.
Justice? Examining the Special Court for Sierra Leone and 1983).
the Truth & Reconciliation Commission for Liberia, 21 Fla. J.
Int’l L. 209, 213 (2009), citing E. Gyimah-Boadi, Executive 47
United States v. Hunter, 13 F.Supp.2D 586, 10 June 1998.
Director, CDD-Ghana, Paper Presentation at the British Hall
Council: Reconciliation: Comparative Perspectives, 7 (June
13, 2005).
48
G.R. No. 121777, 24 January 2001, 350 SCRA 163.

Kristin Bohl, Breaking the Rules of Transitional Justice, 24

33
49
Constitution, Article II, Section 27.
Wis. Int’l L. J. 557, 473 (2006).
50
Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582,
34
G.R. L-25246, 12 September 1974, 59 SCRA 54. 08 April 2010.

35
G.R. L-25246, 12 September 1974, 59 SCRA 54.
51
Ariel Meyerstein, Transitional Justice and Post Conflict
Israel/Palestine: Assessing the Applicability of the Truth
Commission Paradigm, 38 Case W. Res. J. Int’l. L. 281, 330
36
G.R. L-25246, 12 September 1974, 59 SCRA 54.
(2006-2007).
37
United States v. Haggerty, 528 F.Supp. 1268, 1291
Agrava Commission, Presidential Decree No. 1886 (14
52
(D.Colo.1981).
October 1983).
38
United States v. Armstrong, 517 US 456, 464, 116 S.Ct. 53
Davide Commission, Administrative Order No. 146 (06
1480, 134 L.Ed.2d 687 (1996).
December 1989) and Republic Act No. 6832 (05 January
1990).
39
United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982).
54
Feliciano Commission, Administrative Order No. 78 (30 July
40
McLaughlin v. State of Fla., 85 S.Ct. 283 (1964). 2003).

139
55
Melo Commission, Administrative Order No. 173 (23 March Keith Aoki, The Scholarship of Reconstruction and the
68

2007). Politics of Backlash, 81 Iowa L. Rev p. 1468, July 1996.

Zeñarosa Commission, Administrative Order No. 275 (09

56 69
Id.
December 2009).
70
Justice Brion’s Concurring Opinion, pp. 13, 17-18
57
Reyes v. Pearlbank Security, Inc., G.R. No. 171435, 30 July
2008, 560 SCRA 518. 71
Id. at p. 15
58
Executive Order No. 1, Section 2 (b). 72
Id. at p. 27
59
"The prosecution of one guilty person while others equally 73
Brion, supra at p. 27.
guilty are not prosecuted, however, is not, by itself, a denial of
the equal protection of the laws." (People v. Dumlao, G.R. No. 74
Stephen Landsman, Alternative Responses to Serious
168918, 02 March 2009, 580 SCRA 409). Human Rights Abuses: Of Prosecution and Truth
Commissions, Law & Contemp. Probs ., Vol. 59, No. 4, p. 88
60
G.R. No. 142030, 21 April 2005, 456 SCRA 494. (1997).

61
G.R. Nos. 148213-17, 13 March 2009, 581 SCRA 42. 75
Sharon K. Hom and Eric K. Yamamoto, Collective Memory,
History, and Social Justice, 47 UCLA Law Review 1747
62
Rose Weston, Facing the Past, Facing the Future: Applying (2000), p. 1764.
the Truth Commission Model to the Historic Treatment of
Native Americans in the United States, 18 Ariz. J. Int’l & 76
Hom and Yamamoto, supra at p. 1759.
Comp. L. 1017, 1018-1019 (2001).
77
G.R. No. 182498, 03 December 2009, 606 SCRA 598.
63
Jocelyn E. Getgen, Untold Truths: The Exclusion of
Enforced Sterilizations From the Peruvian Truth 78
The right of the people to information on matters of public
Commission’s Final Report, 29 B.C. Third World L.J. 1, 34 concern shall be recognized. Access to official records, and to
(2009). documents and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
64
James Thuo Gathii, Defining The Relationship of Human basis for policy development, shall be afforded the citizen,
Rights to Corruption, 31 U. Pa. J. Int'l L. 125, 170 (2009). subject to such limitations as may be provided by law.
(Constitution, Article III, Section 7)
65
Concurring Opinion of Justice Brion, p. 16
79
Subject to reasonable conditions prescribed by law, the
66
Id. State adopts and implements a policy of full public disclosure
of all its transactions involving public interest. (Constitution,
67
Id. at p. 22 Article II, Section 28)

140
80
"The policy of full public disclosure enunciated in above- 88
Cardozo, supra at p. 174
quoted Section 28 complements the right of access to
information on matters of public concern found in the Bill of 89
Concurring Opinion of Justice Brion, p. 18.
Rights. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes 90
Cardozo, supra at p. 174.
the duty of officialdom to give information even if nobody
demands. 91
Id. at p. 176.
"The policy of public disclosure establishes a concrete 92
Id. at p. 177.
ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people's right to
know as the centerpiece. It is a mandate of the State
93
Cardozo, supra at p. 178.
to be accountable by following such policy. These
provisions are vital to the exercise of the freedom of
94
Id. at p. 179.
expression and essential to hold public officials at all
times accountable to the people." (Province of North 95
Justice Brion’s Concurring Opinion, pp. 5-6.
Cotabato v. GRP Peace Panel on Ancestral Domain,
G.R. Nos. 183591, 183752, 183893, 183951 & 96
Id. at p. 6.
183962, 14 October 2008, 568 SCRA 402; emphasis
supplied) 97
Juan E. Mendéz, Accountability for Past Abuses, 19 Hum.
Rts. Q2, 255-282 (1997); Charles O. Lerche III, Truth
81
In every case, a judge shall endeavor diligently to ascertain Commissions and National Reconciliation: Some Reflections
the facts and the applicable law unswayed by partisan on Theory and
interests, public opinion or fear of criticism. (Barillo v. Lantion, Practice <http://www.gmu.edu/academic/pcs/LERCHE71PCS
G.R. No. 159117 & A.M. No. MTJ-10-1752, 10 March 2010). .html> (accessed 7 November 2010).

82
People v. Sebreño, G.R. No. 121764, 09 September 1999, 98
David Crocker, Reckoning with Past Wrongs: A Normative
314 SCRA 87. Framework, 13 Ethics & International Affairs, 43-64 (1999).

83
Justice Brion’s Concurring Opinion, at pp. 18-19. 99
Brion, supra at p. 6.

84
Benjamin N. Cardozo, The Nature of the Judicial Process 100
Id. at p. 20
(New Haven: Yale University Press, 150 (1921).
101
Id. at p. 33
85
Cardozo, supra at pp. 166-167.
102
Angelika Schlunck, Truth and Reconciliation Commissions,
86
Roosevelt as cited in Cardozo, id., at p. 171. 4 ILSA J. Int’l & Comp. L, 415, 2.

87
Id., at pp. 172-173.

141
103
S. Sandile Ngcobo, Truth, Justice, and Amnesty in South Puno, Concurring and Dissenting Opinion in Francisco v.
114

Africa: Sins from the Past and Lessons for the Future, 8 IUS House of Representatives, G.R. No. 160261, 10 November
Gentium, 6-7. 2003, 415 SCRA 44, 211.

104
Landsman, supra note 72. 115
Getgen, supra note 63, at p. 33.

105
Neil J. Kritz, Coming to Terms with Atrocities: A Review of
Accountability Mechanisms for Mass Violations of Human The Lawphil Project - Arellano Law Foundation
Rights, 59 Law & Contemp. Probs. 4, 127-152.

106
Schlunck, supra at pp. 419-420.
CONCURRING AND DISSENTING OPINION
107
World Bank, Anticorruption in Transition: A Contribution to
the Policy Debate (2000) NACHURA, J.:
<http://info.worldbank.org/etools/docs/library/17506/contributi
on.pdf> (accessed on 7 November 2010). Before us are two (2) consolidated petitions:

108
World Bank, supra at pp. 1-2.
109
Ngcobo, supra note 103 at p. 7.
110
"The question at the heart of the anomaly is why a
democracy – a political system based on representation and
accountability – should entrust the final, or near final, making
of such highly significant decisions to judges – unelected,
independent and insulated from the direct impact of public
opinion." (Stephen G. Breyer, Judicial Review: A Practising
Judge’s Perspective, 19 Oxford Journal of Legal Studies 153
[1999], cited in Vicente V. Mendoza, Judicial Review of
Constitutional Questions, 261 [2004]
1. G.R. No. 192935 is a petition for prohibition filed by
petitioner Louis Biraogo (Biraogo), in his capacity as a citizen
and taxpayer, assailing Executive Order (E.O.) No. 1, entitled
"Creating the Philippine Truth Commission of 2010" for
violating Section 1, Article VI of the 1987 Constitution; and
2. G.R. No. 193036 is a petition for certiorari and prohibition
filed by petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr., in their
capacity as members of the House of Representatives,
similarly bewailing the unconstitutionality of E.O. No. 1.
First, the all too familiar facts leading to this cause celebre.

Alexander M. Bickel, The Least Dangerous Branch: The

111 On May 10, 2010, Benigno Simeon C. Aquino III was elected
Supreme Court at the Bar of Politics, 16-17 (1962). President of the Philippines. Oft repeated during his campaign for the
presidency was the uncompromising slogan, "Kung walang corrupt,
112
Decision, at p. 42. walang mahirap."

Akbayan Citizens Action Party (AKBAYAN) v. Aquino, G.R.

113 Barely a month after his assumption to office, and intended as
No. 170516, 16 July 2008, 558 SCRA 468. fulfillment of his campaign promise, President Aquino, on July 30,
2010, issued Executive Order No. 1, to wit:

142
 EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance
of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects
the political, economic, and social life of a nation; in a very special
way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;
143
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to reorganize
the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of
the Republic of the Philippines, by virtue of the powers vested in me
by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by the public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendation
to the President, Congress and the Ombudsman. In particular, it
shall:
a) Identify and determine the reported cases of such
graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence
related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to
this end require any agency, official or employee of
the Executive Branch, including government-owned or
controlled corporation, to produce documents, books,
records and other papers;
c) Upon proper request and representation, obtain
information and documents from the Senate and the
House of Representatives records of investigations
conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain
information from the courts, including the
Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the
regular courts, as the case may be;
e) Invite or subpoena witnesses and take their
testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to
utilize any person as a state witness to ensure that
the ends of justice be fully served, that such person
who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for that
purpose;
g) Turn over from time to time, for expeditious
prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report
and recommendation, all evidence on corruption of
public officers and employees and their private sector
co-principals, accomplices or accessories, if any,
when in the course of its investigation the
Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption
under pertinent applicable laws;
144
h) Call upon any government investigative or
prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the
discharge of its functions and duties;
i) Engage or contract the services of resource person,
professional and other personnel determined by it as
necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including
the presentation of evidence;
k) Exercise such other acts incident to or are
appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – The Commission shall be
assisted by such assistants and personnel as may be necessary to
enable it to perform its functions, and shall formulate and establish its
organization structure and staffing pattern composed of such
administrative and technical personnel as it may deem necessary to
efficiently and effectively carry out its functions and duties prescribed
herein, subject to the approval of the Department of Budget and
Management. The officials of the Commission shall in particular
include, but not limited to, the following:
a. General Counsel
b. Deputy General Counsel
c. Special Counsel
d. Clerk of the Commission
SECTION 4. Detail of Employees. – The President, upon
recommendation of the Commission, shall detail such public officers
or personnel from other department or agencies which may be
required by the Commission. The detailed officers and personnel may
be paid honoraria and/or allowances as may be authorized by law,
subject to pertinent accounting and auditing rules and procedures.
SECTION 5. Engagement of Experts. – The Truth Commission shall
have the power to engage the services of experts as consultants or
advisers as it may deem necessary to accomplish its mission.
SECTION 6. Conduct of Proceedings. – The proceedings of the
Commission shall be in accordance with the rules promulgated by the
Commission. Hearings or proceedings of the Commission shall be
open to the public. However, the Commission, motu propio, or upon
the request of the person testifying, hold an executive or closed-door
hearing where matters of national security or public safety are
involved or when the personal safety of the witness warrants the
holding of such executive or closed-door hearing. The Commission
shall provide the rules for such hearing.
SECTION 7. Right to Counsel of Witnesses/Resources Persons. –
Any person called to testify before the Commission shall have the
right to counsel at any stage of the proceedings.
SECTION 8. Protection of Witnesses/Resource Persons. – The
Commission shall always seek to assure the safety of the persons
called to testify and, if necessary make arrangements to secure the
assistance and cooperation of the Philippine National Police and
other appropriate government agencies.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
145
SECTION 10. Duty to Extend Assistance to the Commission. – The
departments, bureaus, offices, agencies or instrumentalities of the
Government, including government-owned and controlled
corporations, are hereby directed to extend such assistance and
cooperation as the Commission may need in the exercise of its
powers, execution of its functions and discharge of its duties and
responsibilities with the end in vies of accomplishing its mandate.
Refusal to extend such assistance or cooperation for no valid or
justifiable reason or adequate cause shall constitute a ground for
disciplinary action against the refusing official or personnel.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – The Commission may avail itself of such office
space which may be available in government buildings accessible to
the public space after coordination with the department or agencies in
control of said building or, if not available, lease such space as it may
require from private owners.
SECTION 13. Furniture/Equipment. – The Commission shall also be
entitled to use such equipment or furniture from the Office of the
President which are available. In the absence thereof, it may request
for the purchase of such furniture or equipment by the Office of the
President.
SECTION. 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – On or before December
31, 2012, the Commission shall render a comprehensive final report
which shall be published upon the directive of the president. Prior
thereto, also upon directive of the President, the Commission may
publish such special interim reports it may issue from time to time.
SECTION 16. Transfer of Records and Facilities of the Commission.
– Upon the completion of its work, the records of the Commission as
well as its equipment, furniture and other properties it may have
acquired shall be returned to the Office of the President.
SECTION 17. Special Provision Concerning Mandate. – If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to include
the investigation of cases and instances of graft and corruption during
the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. – If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
Section 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Without delay, petitioners Biraogo and Congressmen Lagman,
Albano, Datumanong, and Fua filed their respective petitions decrying
the constitutionality of the Truth Commission, primarily, for being a
usurpation by the President of the legislative power to create a public
office.
In compliance with our Resolution, the Office of the Solicitor General
(OSG) filed its Consolidated Comment to the petitions. Motu proprio,
the Court heard oral arguments on September 7 and 28, 2010, where
we required the parties, thereafter, to file their respective
memoranda.
In his Memorandum, petitioner Biraogo, in the main, contends that
E.O. No. 1 violates Section 1, Article VI of the 1987 Constitution
146
because it creates a public office which only Congress is empowered
to do. Additionally, "considering certain admissions made by the OSG
during the oral arguments," the petitioner questions the alleged
intrusion of E.O. No. 1 into the independence of the Office of the
Ombudsman mandated in, and protected under, Section 5, Article XI
of the 1987 Constitution.
Holding parallel views on the invalidity of the E.O., petitioner
Members of the House of Representatives raise the following issues:
I.
EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH
COMMISSION OF 2010 VIOLATES THE PRINCIPLE OF
SEPARATION OF POWERS BY USURPING THE POWERS OF
THE CONGRESS (1) TO CREATE PUBLIC OFFICES, AGENCIES
AND COMMISSIONS; AND (2) TO APPROPRIATE PUBLIC FUNDS.
II.
EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE 1987 CONSTITUTION BECAUSE IT LIMITS THE
JURISDICTION OF THE PHILIPPINE TRUTH COMMISSION TO
OFFICIALS AND EMPLOYEES OF THE "PREVIOUS
ADMINISTRATION" (THE ADMINISTRATION OF OFRMER
PRESIDENT GLORIA MACAPAGAL-ARROYO).
III.
EXECUTIVE ORDER NO. 1 SUPPLANTS THE
CONSTITUTIONALLY MANDATED POWERS OF THE OFFICE OF
THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION
AND SUPPLEMENTED BY REPUBLIC ACT NO. 6770 OR THE
"OMBUDSMAN ACT OF 1989."
Expectedly, in its Memorandum, the OSG traverses the contention of
petitioners and upholds the constitutionality of E.O. No. 1 on the
strength of the following arguments:
I.
PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT
PERSONAL INJURY WITH THE ISSUANCE OF EXECUTIVE
ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL STANDING
TO ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER
NO. 1.
II.
EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID.
EXECUTIVE ORDER NO. 1 DOES NOT ARROGATE THE POWERS
OF CONGRESS TO CREATE A PUBLIC OFFICE AND TO
APPROPRIATE FUNDS FOR ITS OPERATIONS.
III.
THE EXECUTIVE CREATED THE TRUTH COMMISSION
PRIMARILY AS A TOOL FOR NATION-BUILDING TO
INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND
CONSEQUENCES OF CORRUPTION AND TO MAKE POLICY
RECOMMENDATIONS FOR THEIR REDRESS AND FUTURE
PREVENTION. ALTHOUGH ITS INVESTIGATION MAY
CONTRIBUTE TO SUBSEQUENT PROSECUTORIAL EFFORTS,
THE COMMISSION WILL NOT ENCROACH BUT COMPLEMENT
THE POWERS OF THE OMBUDSMAN AND THE DOJ IN
INVESTIGATING CORRUPTION.
IV.
EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT
DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE. THE
TRUTH COMMISSION HAS LEGITIMATE AND LAUDABLE
PURPOSES.
In resolving these issues, the ponencia, penned by the learned
Justice Jose Catral Mendoza, concludes that:
1. Petitioners have legal standing to file the instant petitions;
petitioner Biraogo only because of the transcendental
importance of the issues involved, while petitioner Members
of the House of Representatives have standing to question
147
the validity of any official action which allegedly infringes on
their prerogatives as legislators;
2. The creation of the Truth Commission by E. O. No. 1 is not
a valid exercise of the President’s power to reorganize under
the Administrative Code of 1987;
3. However, the President’s power to create the herein
assailed Truth Commission is justified under Section
17,1 Article VII of the Constitution, albeit what may be created
is merely an ad hoc Commission;
4. The Truth Commission does not supplant the Ombudsman
or the Department of Justice (DOJ) nor erode their respective
powers; and
5. Nonetheless, E.O. No. 1 is unconstitutional because it
transgresses the equal protection clause enshrined in Section
1, Article III of the Constitution.
I agree with the ponencia that, given our liberal approach in David v.
Arroyo2 and subsequent cases, petitioners have locus standi to raise
the question of constitutionality of the Truth Commission’s creation. I
also concur with Justice Mendoza’s conclusion that the Truth
Commission will not supplant the Office of the Ombudsman or the
DOJ, nor impermissibly encroach upon the latter’s exercise of
constitutional and statutory powers.
I agree with the ponencia that the President of the Philippines can
create an ad hoc investigative body. But more than that, I believe
that, necessarily implied from his power of control over all executive
departments and his constitutional duty to faithfully execute the laws,
as well as his statutory authority under the Administrative Code of
1987, the President may create a public office.
However, I find myself unable to concur with Justice Mendoza’s
considered opinion that E.O. No. 1 breaches the constitutional
guarantee of equal protection of the laws.
Let me elucidate.
 The Truth Commission is a Public Office
The first of two core questions that confront the Court in this
controversy is whether the President of the Philippines can create a
public office. A corollary, as a consequence of statements made by
the Solicitor General during the oral argument, is whether the Truth
Commission is a public office.
A public office is defined as the right, authority, or duty, created and
conferred by law, by which for a given period, either fixed by law or
enduring at the pleasure of the creating power, an individual is
invested with some sovereign power of government to be exercised
by him for the benefit of the public.3 Public offices are created either
by the Constitution, by valid statutory enactments, or by authority of
law. A person who holds a public office is a public officer.
Given the powers conferred upon it, as spelled out in E.O. No. 1,
there can be no doubt that the Truth Commission is a public office,
and the Chairman and the Commissioners appointed thereto, public
officers.
As will be discussed hereunder, it is my respectful submission that
the President of the Philippines has ample legal authority to create a
public office, in this case, the Truth Commission. This authority flows
from the President’s constitutional power of control in conjunction with
his constitutional duty to ensure that laws be faithfully executed,
coupled with provisions of a valid statutory enactment, E.O. No. 292,
otherwise known as the Administrative Code of 1987.
E. O. No. 1 and the Executive Power
Central to the resolution of these consolidated petitions is an
understanding of the "lines of demarcation" of the powers of
government, i.e., the doctrine of separation of powers. The landmark
case of Government of the Philippine Islands v. Springer4 has
mapped out this legal doctrine:
The Government of the Philippines Islands is an agency of the
Congress of the United States. The powers which the Congress, the
principal, has seen fit to entrust to the Philippine Government, the
148
agent, are distributed among three coordinate departments, the
executive, the legislative, and the judicial. It is true that the Organic
Act contains no general distributing clause. But the principle is clearly
deducible from the grant of powers. It is expressly incorporated in our
Administrative Code. It has time and again been approvingly enforced
by this court.
No department of the government of the Philippine Islands may
legally exercise any of the powers conferred by the Organic Law
upon any of the others. Again it is true that the Organic Law contains
no such explicit prohibitions. But it is fairly implied by the division of
the government into three departments. The effect is the same
whether the prohibition is expressed or not. It has repeatedly been
announced by this court that each of the branches of the Government
is in the main independent of the others. The doctrine is too firmly
imbedded in Philippine institutions to be debatable.
It is beyond the power of any branch of the Government of the
Philippine islands to exercise its functions in any other way than that
prescribed by the Organic Law or by local laws which conform to the
Organic Law. The Governor-General must find his powers and duties
in the fundamental law. An Act of the Philippine Legislature must
comply with the grant from Congress. The jurisdiction of this court
and other courts is derived from the constitutional provisions.
xxx
The Organic Act vests "the supreme executive power" in the
Governor-General of the Philippine Islands. In addition to specified
functions, he is given "general supervisions and control of all the
departments and bureaus of the government of the Philippine Islands
as far is not inconsistent with the provisions of this Act." He is also
made "responsible for the faithful execution of the laws of the
Philippine islands and of the United States operative within the
Philippine Islands." The authority of the Governor-General is made
secure by the important proviso "that all executive functions of
Government must be directly under the governor-General or within
one of the executive departments under the supervision and control
of the governor-general." By the Administrative Code, "the governor-
general, as Chief executive of the islands, is charged with the
executive control of the Philippine Government, to be exercised in
person or through the Secretaries of Departments, or other proper
agency, according to law."
These "lines of demarcation" have been consistently recognized and
upheld in all subsequent Organic Acts applied to the Philippines,
including the present fundamental law, the 1987 Constitution.
Section 1, Article VII of the 1987 Constitution5 vests executive power
in the President of the Philippines. On the nature of the executive
power, Justice Isagani A. Cruz writes:
Executive power is briefly described as the power to enforce and
administer the laws, but it is actually more than this. In the exercise of
this power, the President of the Philippines assumes a plenitude of
authority, and the corresponding awesome responsibility, that makes
him, indeed, the most influential person in the land.6
In National Electrification Administration v. Court of Appeals,7 this
Court said that, as the administrative head of the government, the
President is vested with the power to execute, administer and carry
out laws into practical operation. Impressed upon us, then, is the fact
that executive power is the power of carrying out the laws into
practical operation and enforcing their due observance.
Relevant to this disquisition are two specific powers that flow from
this "plenitude of authority." Both are found in Section 17, Article VII
of the Constitution.8 They are commonly referred to as the power of
control and the take care clause.
Section 17 is a self-executing provision. The President’s power of
control is derived directly from the Constitution and not from any
implementing legislation.9 On the other hand, the power to take care
that the laws be faithfully executed makes the President a dominant
figure in the administration of the government. The law he is
supposed to enforce includes the Constitution itself, statutes, judicial
decisions, administrative rules and regulations and municipal
ordinances, as well as the treaties entered into by our
government.10 At almost every cusp of executive power is the
President’s power of control and his constitutional obligation to
ensure the faithful execution of the laws.
149
Demonstrating the mirabile dictu of presidential power and obligation,
we declared in Ople v. Torres:11
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus
and offices. This means that he has the authority to assume directly
the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of
control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public
order. Thus, he is granted administrative power over bureaus and
offices under his control to enable him to discharge his duties
effectively.
Mondano v. Silvosa,12 defines the power of control as "the power of
an officer to alter, modify, or set aside what a subordinate officer had
done in the performance of his duties, and to substitute the judgment
of the former for that of the latter." It includes the authority to order
the doing of an act by a subordinate, or to undo such act or to
assume a power directly vested in him by law.13
In this regard, Araneta v. Gatmaitan14 is instructive:
If under the law the Secretary of Agriculture and Natural Resources
has authority to regulate or ban fishing by trawl, then the President of
the Philippines may exercise the same power and authority because
of the following: (a) The President shall have control of all the
executive departments, bureaus or offices pursuant to Section 10(1),
Article VII, of the Constitution; (b) Executive Orders may be issued by
the President under Section 63 of the Revised Administrative Code
:governing the general performance of duties by public employees or
disposing of issues of general concern;" and (c) Under Section 74 of
the Revised Administrative Code, "All executive functions of the
Government of the Republic of the Philippines shall be directly under
the Executive Department, subject to the supervision and control of
the President of the Philippines in matters of general policy."
Our ruling in City of Iligan v. Director of Lands15 echoes the same
principle in this wise:
Since it is the Director of Lands who has direct executive control
among others in the lease, sale or any form of concession or
disposition of the land of the public domain subject to the immediate
control of the Secretary of Agriculture and Natural Resources, and
considering that under the Constitution the President of the
Philippines has control over all executive departments, bureaus and
offices, etc., the President of the Philippines has therefore the same
authority to dispose of the portions of the public domain as his
subordinates, the Director of Lands, and his alter-ego the Secretary
of Agriculture and Natural Resources.
From these cited decisions, it is abundantly clear that the overarching
framework in the President’s power of control enables him to assume
directly the powers of any executive department, bureau or office.
Otherwise stated, whatever powers conferred by law upon
subordinate officials within his control are powers also vested in the
President of the Philippines. In contemplation of law, he may directly
exercise the powers of the Secretary of Foreign Affairs, the Secretary
of National Defense, the Commissioner of Customs, or of any
subordinate official in the executive department. Thus, he could, for
example, take upon himself the investigatory functions of the
Department of Justice, and personally conduct an investigation. If he
decides to do so, he would be at liberty to delegate a portion of this
investigatory function to a public officer, or a panel of public officers,
within his Office and under his control. There is no principle of law
that proscribes his doing so. In this context, the President may,
therefore, create an agency within his Office to exercise the functions,
or part of the functions, that he has assumed for himself. Even the
ponencia admits that this can be done.
When this power of control is juxtaposed with the constitutional duty
to ensure that laws be faithfully executed, it is obvious that, for the
effective exercise of the take care clause, it may become necessary
for the President to create an office, agency or commission, and
charge it with the authority and the power that he has chosen to
assume for himself. It will not simply be an exercise of the power of
control, but also a measure intended to ensure that laws are faithfully
executed.
150
To reiterate, the take care clause is the constitutional mandate for the
President to ensure that laws be faithfully executed. Dean Vicente G.
Sinco observed that the President’s constitutional obligation of
ensuring the faithful execution of the laws "is a fundamental function
of the executive head [involving] a two-fold task, [i.e.,] the
enforcement of laws by him and the enforcement of laws by other
officers under his direction." 16
As adverted to above, the laws that the President is mandated to
execute include the Constitution, statutes, judicial decisions,
administrative rules and regulations and municipal ordinances.
Among the constitutional provisions that the President is obliged to
enforce are the following General Principles and State Policies of the
1987 Philippine Constitution:
Section 4, Article II: The prime duty of government is to serve and
protect the people x x x
Section 5, Article II: The maintenance of peace and order, the
protection of life, liberty and property, and promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Section 9, Article II: The State shall promote a just and dynamic
social order that will ensure the prosperity and independence of the
nation and free the people from poverty through policies that provide
adequate social services, promote full employment, a rising standard
of living, and an improved quality of life for all.
Section 13, Article II: The State values the dignity of every human
person and guarantees full respect for human rights.
Section 27, Article II: The State shall maintain honesty and integrity in
the public service and take positive and effective measures against
graft and corruption.
Section 28, Article II: 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.
Closer to home, as head of the biggest bureaucracy in the country,
the President must also see to the faithful execution of Section 1,
Article XI of the Constitution, which reads: "Public office is a public
trust. Public officers and employees must at all times be accountable
to the people; serve them with utmost responsibility, integrity, loyalty
and efficiency; act with patriotism and justice; and lead modest lives."
These are constitutional provisions the enforcement of which is
inextricably linked to the spirit and objective of E.O. No. 1.
Although only Section 1, Article XI, is cited in the Whereas clauses of
E. O. No. 1, the President is obliged to execute the other
constitutional principles as well. Absent any law that provides a
specific manner in which these constitutional provisions are to be
enforced, or prohibits any particular mode of enforcement, the
President could invoke the doctrine of necessary implication, i.e., that
the express grant of the power in Section 17, Article VII, for the
President to faithfully execute the laws, carries with it the grant of all
other powers necessary, proper, or incidental to the effective and
efficient exercise of the expressly granted power.17 Thus, if a Truth
Commission is deemed the necessary vehicle for the faithful
execution of the constitutional mandate on public accountability, then
the power to create the same would necessarily be implied, and
reasonably derived, from the basic power granted in the Constitution.
Accordingly, the take care clause, in harmony with the President’s
power of control, along with the pertinent provisions of the
Administrative Code of 1987, would justify the issuance of E. O. No. 1
and the creation of the Truth Commission.
Further to this discussion, it is cogent to examine the administrative
framework of Executive Power, as outlined in the Administrative
Code.
Quite logically, the power of control and the take care clause precede
all others in the enumeration of the Powers of the President. Section
1, Book III, Title I simply restates the constitutional provision, to wit:
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.
151
Next in the enumeration is the ordinance power of the President
which defines executive orders, thus:
SEC. 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.
At the bottom of the list are the other powers (Chapter 7, Book III of
the Code) of the President, which include the residual power, viz:
SEC. 19. Powers Under the Constitution.—The President shall
exercise such other powers as are provided for in the Constitution.
SEC. 20. Residual Powers.—Unless Congress provides otherwise,
the president shall exercise such other powers and functions vested
in the President which are provided for under the laws and which are
not specifically enumerated above, or which are not delegated by the
President in accordance with law.
In addition, pursuant to the organizational structure of the Executive
Department,18 one of the powers granted to the President is his
continuing authority to reorganize his Office:19
SEC. 31. Continuing Authority of the President to Reorganize his
Office. - The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing, consolidating
or merging units thereof or transferring functions from one unit
to another;
(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
 to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments or
agencies.
Consistent therewith, the Administrative Code provides in Section 1,
Chapter 1, Book IV (The Executive Branch) that "[t]he Executive
Branch shall have such Departments as are necessary for the
functional distribution of the work of the President and for the
performance of their functions." Hence, the primary articulated policy
in the Executive Branch is the organization and maintenance of the
Departments to insure their capacity to plan and implement programs
in accordance with established national policies.20
With these Administrative Code provisions in mind, we note the
triptych function of the Truth Commission, namely: (1) gather facts;
(2) investigate; and (3) recommend, as set forth in Section 1 of E.O.
No. 1:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall [1] primarily seek and find the truth on,
and toward this end, [2] investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by the public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter [3] recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor. (emphasis and numbering supplied)
It is plain to see that the Truth Commission’s fact-finding and
investigation into "reports of large scale corruption by the previous
administration" involve policy-making on issues of fundamental
concern to the President, primarily, corruption and its linkage to the
country’s social and economic development.
152
On this point, I differ from the ponencia, as it reads the President’s
power to reorganize in a different light, viz:
The question, therefore, before the Court is this: Does the creation of
the Truth Commission fall within the ambit of the power to reorganize
as expressed in Section 31 of the Revised Administrative Code?
Section 31 contemplates "reorganization" as limited by the following
functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing,
consolidating or merging units thereof or transferring functions from
one unit to another; (2) transferring any function under the Office of
the President to any other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to
reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent by a
modification or alteration thereof has to be effected. The creation of
an office is nowhere mentioned, much less envisioned in said
provision. Accordingly, the answer is in the negative.
xxx
xxx [T]he creation of the Truth Commission is not justified by the
president’s power of control. Control is essentially the power to alter
or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former with that of the latter. Clearly, the power of control is entirely
different from the power to create public offices. The former is
inherent in the Executive, while the latter finds basis from either a
valid delegation from Congress, or his inherent duty to faithfully
execute the laws.
I am constrained to disagree because, contrary to the ponencia’s
holding, the President’s power to reorganize is not limited by the
enumeration in Section 31 of the Administrative Code.
As previously discussed, the President’s power of control, in
conjunction with his constitutional obligation to faithfully execute the
laws, allows his direct assumption of the powers and functions of
executive departments, bureaus and offices.21 To repeat, the
overarching framework in the President’s power of control enables
him to assume directly the functions of an executive department. On
the macro level, the President exercises his power of control by
directly assuming all the functions of executive departments, bureaus
or offices. On the micro level, the President may directly assume
certain or specific, not all, functions of a Department. In the milieu
under which the Truth Commission is supposed to operate, pursuant
to E. O. No. 1, only the investigatory function of the DOJ for certain
crimes is directly assumed by the President, then delegated to the
Truth Commission. After all, it is axiomatic that the grant of broad
powers includes the grant of a lesser power; in this case, to be
exercised — and delegated —at the President’s option.
My conclusion that the transfer of functions of a Department to the
Office of the President falls within the President’s power of
reorganization is reinforced by jurisprudence.
In Larin v. Executive Secretary,22 the Court sustained the President’s
power to reorganize under Section 20, Book III of E.O. 292, in relation
to PD No. 1416, as amended by PD No. 1772:
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No.
292 which states:
"Sec. 20. Residual Powers.—Unless Congress provides otherwise,
the President shall exercise such other powers and functions vested
in the President which are provided for under the laws and which are
not specifically enumerated above or which are not delegated by the
President in accordance with law.
This provision speaks of such other powers vested in the president
under the law. What law then gives him the power to reorganize? It is
Presidential decree No. 1772 which amended Presidential Decree no.
1416. These decrees expressly grant the President of the Philippines
the continuing authority to reorganize the national government, which
includes the power to group, consolidate bureaus and agencies, to
abolish offices, to transfer functions, to create and classify functions,
services and activities and to standardize salaries and materials. The
validity of these two decrees are unquestionable. The 1987
153
Constitution clearly provides that "all laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances
not inconsistent with this Constitution shall remain operative until
amended, repealed or revoked." So far, there is yet not law amending
or repealing said decrees.
Subsequently, Buklod ng Kawaning EIIB v. Zamora,23 affirmed the
holding in Larin and explicitly recognized the President’s authority to
transfer functions of other Departments or Agencies to the Office of
the President, consistent with his powers of reorganization, to wit:
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very sources of
the power—that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), "the President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the president." For this
purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre, we
ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions." It takes place when there is an alteration of
the existing structure of government or units therein, including the
lines of control, authority and responsibility between them. xxx
(emphasis supplied)
Then, and quite significantly, in Bagaoisan v. National Tobacco
Administration,24 this Court clarified the nature of the grant to the
President of the power to reorganize the administrative structure of
the Office of the President, thus:
In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon.
Ronaldo d. Zamora, in his capacity as the Executive Secretary, et. al.,
this Court has had occasion to also delve on the President’s power to
reorganize the Office of the President under Section 31 (2) and (3) of
Executive Order No. 292 and the power to reorganize the Office of
the President Proper. The Court has there observed:
"x x x. Under Section 31(1) of E.O. 292, the President can reorganize
the Office of the President Proper by abolishing, consolidating or
merging units, or by transferring functions from one unit to another. In
contrast, under Section 31(2) and (3) of EO 292, the President’s
power to reorganize offices outside the Office of the President Proper
but still within the Office of the President is limited to merely
transferring functions or agencies from the Office of the President to
Departments or Agencies, and vice versa."
The provisions of Section 31, Book III, Chapter 10, of Executive
Order No. 292 (Administrative code of 1987), above-referred to,
reads thusly:
Sec. 31. Continuing Authority of the President to Reorganize his
Office. - The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing, consolidating
or merging units thereof or transferring functions from one unit
to another;
(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments or
agencies.
The first sentence of the law is an express grant to the President of a
continuing authority to reorganize the administrative structure of the
Office of the President. The succeeding numbered paragraphs are
154
not in the nature of provisos that unduly limit the aim and scope of the
grant to the President of the power to reorganize but are to be viewed
in consonance therewith. Section 31(1) of Executive order No. 292
specifically refers to the President’s power to restructure the internal
organization of the Office of the President Proper, by abolishing,
consolidating or merging units hereof or transferring functions from
unit to another, while Section 31(2) and (3) concern executive offices
outside the Office of the President Proper allowing the President to
transfer any function under the Office of the President to any other
Department or Agency and vice versa, and the transfer of any agency
under the Office of the President to any other department or agency
and vice versa. (Emphasis supplied)
Notably, based on our ruling in Bagaoisan, even if we do not consider
P.D. No. 1416, as amended by P.D. No. 1772, the abstraction of the
Truth Commission, as fortified by the President’s power to reorganize
found in paragraph 2, Section 31 of the Administrative Code, is
demonstrably permitted.
That the Truth Commission is a derivative of the reorganization of the
Office of the President should brook no dissent. The President is not
precluded from transferring and re-aligning the fact-finding functions
of the different Departments regarding certain and specific issues,
because ultimately, the President’s authority to reorganize is derived
from the power-and-duty nexus fleshed out in the two powers granted
to him in Section 17, Article VII of the Constitution.25
I earnestly believe that, even with this Court’s expanded power of
judicial review, we still cannot refashion, and dictate on, the policy
determination made by the President concerning what function, of
whichever Department, regarding specific issues, he may choose to
directly assume and take cognizance of. To do so would exceed the
boundaries of judicial authority and encroach on an executive
prerogative. It would violate the principle of separation of powers, the
constitutional guarantee that no branch of government should
arrogate unto itself those functions and powers vested by the
Constitution in the other branches.26
In fine, it is my submission that the Truth Commission is a public
office validly created by the President of the Philippines under
authority of law, as an adjunct of the Office of the President — to
which the President has validly delegated the fact-finding and
investigatory powers [of the Department of Justice] which he had
chosen to personally assume. Further, it is the product of the
President’s exercise of the power to reorganize the Office of the
President granted under the Administrative Code.
This conclusion inevitably brings to the threshold of our discussion
the matter of the "independence" of the Truth Commission, subject of
an amusing exchange we had with the Solicitor General during the
oral argument, and to which the erudite Justice Arturo D. Brion
devoted several pages in his Separate Concurring Opinion. The word
"independent," as used in E. O. No. 1, cannot be understood to mean
total separateness or full autonomy from the Office of the President.
Being a creation of the President of the Philippines, it cannot be
totally dissociated from its creator. By the nature of its creation, the
Truth Commission is intimately linked to the Office of the President,
and the Executive Order, as it were, is the umbilical cord that binds
the Truth Commission to the Office of the President.
The word "independent," used to describe the Commission, should be
interpreted as an expression of the intent of the President: that the
Truth Commission shall be accorded the fullest measure of freedom
and objectivity in the pursuit of its mandate, unbound and uninhibited
in the performance of its duties by interference or undue pressure
coming from the President. Our exchange during the oral argument
ended on this note: that while the Truth Commission is, technically,
subject to the power of control of the President, the latter has
manifested his intention, as indicated in the Executive Order, not to
exercise the power over the acts of the Commission.
E. O. No. 1 and the Equal Protection Clause
Enshrined in Section 1, Article III of the Philippine Constitution is the
assurance that all persons shall enjoy the equal protection of the
laws, expressed as follows:
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. (emphasis supplied)
155
The equality guaranteed under this clause is equality under the same
conditions and among persons similarly situated; it is equality among
equals, not similarity of treatment of persons who are classified based
on substantial differences in relation to the object to be
accomplished.27 When things or persons are different in fact or
circumstances, they may be treated in law differently. On this score,
this Court has previously intoned that:
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 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.28
Thus, when a statute or executive action is challenged on the ground
that it violates the equal protection clause, the standards of judicial
review are clear and unequivocal:
It is an established principle in constitutional law that the guaranty of
the equal protection of the laws is not violated by a legislation based
on a reasonable classification. Classification, to be valid, must: (1)
rest on substantial distinctions; (2) be germane to the purpose of the
law; (3) not be limited to existing conditions only; and (4) apply
equally to all members of the same class.29
Further, in a more recent decision, we also declared:
In consonance thereto, we have held that "in our jurisdiction, the
standard and analysis of equal protection challenges in the main
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." x x x.
Under this test, a legislative classification, to survive an equal
protection challenge, must be shown to rationally further a legitimate
state interest. The classifications must be reasonable and rest upon
some ground of difference having a fair and substantial relation to the
object of the legislation. Since every law has in its favor the
presumption of constitutionality, the burden of proof is on the one
attacking the constitutionality of the law to prove beyond reasonable
doubt that the legislative classification is without rational basis. The
presumption of constitutionality can be overcome only by the most
explicit demonstration that a classification is a hostile and oppressive
discrimination against particular persons and classes, and that there
is no conceivable basis which might support it.30
The "rational basis" test is one of three "levels of scrutiny" analyses
developed by courts in reviewing challenges of unconstitutionality
against statutes and executive action. Carl Cheng, in his dissertation,
"Important Right and the Private Attorney General
Doctrine,"31 enlightens us, thus:
[I]n the area of equal protection analysis, the judiciary has developed
a ‘level of scrutiny’ analysis for resolving the tensions inherent in
judicial review. When engaging in this analysis, a court subjects the
legislative or executive action to one of three levels of scrutiny,
depending on the class of persons and the rights affected by the
action. The three levels are rational basis scrutiny, intermediate
scrutiny, and strict scrutiny. If a particular legislative or executive act
does not survive the appropriate level of scrutiny, the act is held to be
unconstitutional. If it does survive, it is deemed constitutional. The
three tensions discussed above and, in turn, the three judicial
responses to each, run parallel to these three levels of scrutiny. In
response to each tension, the court applies a specific level of
scrutiny.
He goes on to explain these "levels of scrutiny", as follows:
The first level of scrutiny, rational basis scrutiny, requires only that the
purpose of the legislative or executive act not be invidious or
156
arbitrary, and that the act’s classification be reasonably related to the
purpose. Rational basis scrutiny is applied to legislative or executive
acts that have the general nature of economic or social welfare
legislation. While purporting to set limits, rational basis scrutiny in
practice results in complete judicial deference to the legislature or
executive. Thus, a legislative or executive act which is subject to
rational basis scrutiny is for all practical purposes assured of being
upheld as constitutional.
The second level of scrutiny, intermediate scrutiny, requires that the
purpose of the legislative or executive act be an important
governmental interest and that the act’s classification be significantly
related to the purpose. Intermediate scrutiny has been applied to
classifications based on gender and illegitimacy. The rationale for this
higher level of scrutiny is that gender and illegitimacy classifications
historically have resulted from invidious discrimination. However,
compared to strict scrutiny, intermediate scrutiny’s presumption of
invidious discrimination is more readily rebutted, since benign
motives are more likely to underlie classifications triggering
intermediate scrutiny.
The third level of scrutiny is strict scrutiny. Strict scrutiny requires that
the legislative or executive act’s purpose be a compelling state
interest and that the act’s classification be narrowly tailored to the
purpose. Strict scrutiny is triggered in two situations: (1) where the act
infringes on a fundamental right; and (2) where the act’s classification
is based on race or national origin. While strict scrutiny purports to be
only a very close judicial examination of legislative or executive acts,
for all practical purposes, an act subject to strict scrutiny is assured of
being held unconstitutional. (Citations omitted.)
that, in a host of cases, this Court has recognized the applicability of
the foregoing tests. Among them are City of Manila v. Laguio,
Jr.,32 Central Bank Employees Association v. Bangko Sentral ng
Pilipinas,33 and British American Tobacco v. Camacho, et al.,34 in all
of which the Court applied the minimum level of scrutiny, or the
rational basis test.
It is important to remember that when this Court resolves an equal
protection challenge against a legislative or executive act, "[w]e do
not inquire whether the [challenged act] is wise or desirable xxx.
Misguided laws may nevertheless be constitutional. Our task is
merely to determine whether there is ‘some rationality in the nature of
the class singled out.’"35
Laws classify in order to achieve objectives, but the classification may
not perfectly achieve the objective.36 Thus, in Michael M. v. Supreme
Court of Sonoma County,37 the U.S. Supreme Court said that the
relevant inquiry is not whether the statute is drawn as precisely as it
might have been, but whether the line chosen [by the legislature] is
within constitutional limitations. The equal protection clause does not
require the legislature to enact a statute so broad that it may well be
incapable of enforcement.38
It is equally significant to bear in mind that when a governmental act
draws up a classification, it actually creates two classes: one consists
of the people in the "statutory class" and the other consists precisely
of those people necessary to achieve the objective of the
governmental action (the "objective class").39 It could happen that –
The "statutory class" may include "more" than is necessary in the
classification to achieve the objective. If so, the law is "over-
inclusive." The classification may also include "less" than is
necessary to achieve the objective. If so, the statute is "under-
inclusive."
A curfew law, requiring all persons under age eighteen to be off the
streets between the hours of midnight and 6 a.m., presumably has as
its objective the prevention of street crime by minors; this is "over-
inclusive" since the class of criminal minors (the objective class) is
completely included in the class of people under age eighteen (the
statutory class), but many people under age eighteen are not part of
the class of criminal minors.
A city ordinance that bans streetcar vendors in a heavily visited
"tourist quarter" of the city in order to alleviate sidewalk and street
congestion is "under-inclusive". All streetcar vendors (the statutory
class) contribute toward sidewalk and street congestion, but the class
of people causing sidewalk and street congestion (the objective
class) surely includes many others as well.
157
It is rare if not virtually impossible for a statutory class and an
objective class to coincide perfectly.40
And, as the ponencia itself admits, "under-inclusion" or "over-
inclusion, per se, is not enough reason to invalidate a law for violation
of the equal protection clause, precisely because perfection in
classification is not required.41
Thus, in the determination of whether the classification is invidious or
arbitrary, its relation to the purpose must be examined. Under the
rational basis test, the presence of any plausible legitimate objective
for the classification, where the classification serves to accomplish
that objective to
any degree, no matter how tiny, would validate the classification. To
be invalidated on constitutional grounds, the test requires that the
classification must have one of the following traits: (1) it has
absolutely no conceivable legitimate purpose; or (2) it is so
unconnected to any conceivable objective, that it is absurd, utterly
arbitrary, whimsical, or even perverse.42
Given the foregoing discussion on this constitutional guarantee of
equal protection, we now confront the question: Does the mandate of
Executive Order No. 1, for the Truth Commission to investigate "graft
and corruption during the previous administration," violate the equal
protection clause?
I answer in the negative.
First, because Executive Order No. 1 passes the rational basis test.
To repeat, the first level of scrutiny known as the rational basis test,
requires only that the purpose of the legislative or executive act not
be invidious or arbitrary, and that the act’s classification be
reasonably related to the purpose. The classification must be shown
to rationally further a legitimate state interest.43 In its recent equal
protection jurisprudence, the Court has focused primarily upon (1) the
"rationality" of the government’s distinction, and (2) the "purpose" of
that distinction.
To the point, we look at the definition of an executive order and the
articulated purpose of E.O. No. 1.
An executive order is an act of the President providing for rules in
implementation or execution of constitutional or statutory
powers.44 From this definition, it can easily be gleaned that E. O. No.
1 is intended to implement a number of constitutional provisions,
among others, Article XI, Section 1. In fact, E.O. No. 1 is prefaced
with the principle that "public office is a public trust" and "public
officers and employees, who are servants of the people, must at all
time be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and
justice, and lead modest lives."
What likewise comes to mind, albeit not articulated therein, is Article
II, Section 27, of the 1987 Constitution, which declares that "[t]he
State shall maintain honesty and integrity in the public service and
take positive and effective measures against graft and corruption." In
addition, the immediately following section provides: "[s]ubject to
reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions
involving public interest."45 There is also Article XI, Section 1, which
sets the standard of conduct of public officers, mandating that
"[p]ublic officers and employees must, at all times, be accountable to
the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency; act with patriotism and justice, and lead modest lives."
There is, therefore, no gainsaying that the enforcement of these
provisions, i.e., the fight against corruption, is a compelling state
interest.
Not only does the Constitution oblige the President to ensure that all
laws be faithfully executed,46 but he has also taken an oath to
preserve and defend the Constitution.47 In this regard, the President’s
current approach to restore public accountability in government
service may be said to involve a process, starting with the creation of
the Truth Commission.
It is also no secret that various commissions had been established by
previous Presidents, each specifically tasked to investigate certain
reports and issues in furtherance of state interest. Among the latest of
such commissions is the Zeñarosa Commission, empowered to
158
investigate the existence of private armies, as well as the
Maguindanao Massacre.48
Under E.O. No. 1, the President initially classified the investigation of
reports of graft and corruption during the previous administration
because of his avowed purpose to maintain the public trust that is
characteristic of a public office. The first recital (paragraph) of E.O.
No. 1 does not depart therefrom. The succeeding recitals
(paragraphs) enumerate the causality of maintaining public office as a
public trust with corruption as "among the most despicable acts of
defiance of this principle and notorious violation of this mandate."
Moreover, the President views corruption as "an evil and scourge
which seriously affects the political, economic, and social life of a
nation." Thus, the incumbent President has determined that the first
phase of his fight against graft and corruption is to have reports
thereof during the previous administration investigated. There is then
a palpable relation between the supposed classification and the
articulated purpose of the challenged executive order.
The initial categorization of the issues and reports which are to be the
subject of the Truth Commission’s investigation is the President’s call.
Pursuing a system of priorities does not translate to suspect
classification resulting in violation of the equal protection guarantee.
In his assignment of priorities to address various government
concerns, the President, as the
Chief Executive, may initially limit the focus of his inquiry and
investigate issues and reports one at a time. As such, there is
actually no differential treatment that can be equated to an invalid
classification.
E.O. No. 1 cannot be subjected to the strict level of scrutiny simply
because there is a claimed inequality on its face or in the manner it is
to be applied. On its face, there is actually no class created. The
ponencia harps on three provisions in the executive order directing
the conduct of an investigation into cases of large scale graft and
corruption "during the previous administration." On that basis, the
ponencia concludes that there is invidious discrimination, because
the executive order is focused only on the immediate past
administration.
I disagree. While the phrase "previous administration" alludes to
persons, which may, indeed, be a class within the equal protection
paradigm, it is important to note that the entire phrase is "during the
previous administration," which connotes a time frame that limits the
scope of the Commission’s inquiry. The phrase does not really create
a separate class; it merely lays down the pertinent period of inquiry.
The limited period of inquiry, ostensibly (but only initially) excluding
administrations prior to the immediate past administration, is not, per
se, an intentional and invidious discrimination anathema to a valid
classification. Even granting that the phrase creates a class, E.O. No.
1 has not, as yet, been given any room for application, since barely a
few days from its issuance, it was subjected to a constitutional
challenge. We cannot allow the furor generated by this controversy
over the creation of the Truth Commission to be an excuse to apply
the strict scrutiny test, there being no basis for a facial challenge, nor
for an "as-applied" challenge.
To reiterate for emphasis, the determination of the perceived
instances of graft and corruption that ought to claim priority of
investigation is addressed to the executive, as it involves a policy
decision. This determination must not to be overthrown simply
because there are other instances of graft and corruption which the
Truth Commission should also investigate.49 In any event, Section 17
of E.O. No. 1 responds to this objection, when it provides:
SECTION 17. Special Provision Concerning Mandate. – If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to include
the investigation of cases and instances of graft and corruption during
the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
It may also be pointed out that E.O. No. 1 does not confer a right nor
deprive anyone of the exercise of his right. There is no right conferred
nor liability imposed that would constitute a burden on fundamental
rights so as to justify the application of the strict scrutiny test. A fact-
finding investigation of certain acts of public officers committed during
a specific period hardly merits this Court’s distraction from its regular
functions. If we must exercise the power of judicial review, then we
should use the minimum level of scrutiny, the rational basis test.
159
On more than one occasion, this Court denied equal protection
challenges to statutes without evidence of a clear and intentional
discrimination.50 The pervasive theme in these rulings is a claim of
discriminatory prosecution, not simply a claim of discriminatory
investigation. In People v. Piedra,51 we explained:
The prosecution of one guilty person while others equally guilty are
not prosecuted, however, is not, by itself, a denial of the equal
protection of the laws. Where the official action purports to be in
conformity to the statutory classification, an erroneous or mistaken
performance of the statutory duty, although a violation of the statute,
is not without more a denial of the equal protection of the laws. The
unlawful administration by officers of a statute fair on its face,
resulting in its unequal application to those who are entitled to be
treated alike, is not a denial of equal protection unless there is shown
to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with
respect to a particular class or person, or it may only be shown by
extrinsic evidence showing a discriminatory design over another not
to be inferred from the action itself. But a discriminatory purpose is
not presumed, there must be a showing of "clear and intentional
discrimination."Appellant has failed to show that, in charging
appellant in court, that there was a "clear and intentional
discrimination" on the part of the prosecuting officials.
The discretion of who to prosecute depends on the prosecution's
sound assessment whether the evidence before it can justify a
reasonable belief that a person has committed an offense. The
presumption is that the prosecuting officers regularly performed
their duties, and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed, appellant
has not presented any evidence to overcome this presumption. The
mere allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in
appellant's eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal protection of the laws.
There is also common sense practicality in sustaining appellant's
prosecution.
While all persons accused of crime are to be treated on a basis of
equality before the law, it does not follow that they are to be protected
in the commission of crime. It would be unconscionable, for instance,
to excuse a defendant guilty of murder because others have
murdered with impunity. The remedy for unequal enforcement of the
law in such instances does not lie in the exoneration of the guilty at
the expense of society x x x. Protection of the law will be extended to
all persons equally in the pursuit of their lawful occupations, but no
person has the right to demand protection of the law in the
commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as
to some persons should be converted into a defense for others
charged with crime, the result would be that the trial of the district
attorney for nonfeasance would become an issue in the trial of many
persons charged with heinous crimes and the enforcement of law
would suffer a complete breakdown. (emphasis supplied.)
Evidently, the abstraction of the President’s power to directly
prosecute crimes, hand in hand with his duty to faithfully execute the
laws, carries with it the lesser power of investigation. To what extent,
then, should this Court exercise its review powers over an act of the
President directing the conduct of a fact-finding investigation that has
not even commenced? These are clearly issues of wisdom and
policy. Beyond what is presented before this Court, on its face, the
rest remains within the realm of speculation.
It bears stressing that by tradition, any administration’s blueprint for
governance covers a wide range of priorities. Contrary to the
ponencia’s conclusion, such a roadmap for governance obviously
entails a "step by step" process in the President’s system of priorities.
Viewed in this context, the fact that the "previous administration" was
mentioned thrice in E.O. No. 1, as pointed out by the ponencia, is not
"purposeful and intentional discrimination" which violates the equal
protection clause. Such a circumstance does not demonstrate a
"history of purposeful unequal treatment, or relegated to such a
position of political powerlessness as to command extraordinary
protection from the majoritarian political process."52 It simply has to be
taken in the light of the President’s discretion to determine his
government’s priorities.
160
It, therefore, remains unclear how the equal protection clause is
violated merely because the E. O. does not specify that reports of
large scale graft and corruption in other prior administrations should
likewise be investigated. Notably, the investigation of these reports
will not automatically lead to prosecution, as E.O No. 1 only
authorizes the investigation of certain reports with an accompanying
recommended action.
The following provisions of the executive order are too clear to brook
objection:
1. 5th Whereas Clause
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
2. Section 1
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by the public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
3. Section 2
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendation
to the President, Congress and the Ombudsman.
Second, petitioners do not even attempt to overthrow the
presumption of constitutionality of executive acts. They simply hurl
pastiche arguments hoping that at least one will stick.
In any imputed violations of the equal protection clause, the standard
of judicial review is always prefaced by a presumption of
constitutionality:
As this Court enters upon the task of passing on the validity of an act
of a co-equal and coordinate branch of the Government, it bears
emphasis that deeply ingrained in our jurisprudence is the time-
honored principle that statute is presumed to be valid. This
presumption is rooted in the doctrine of separation of powers which
enjoins upon the three coordinate departments of the Government a
becoming courtesy for each other’s acts. Hence, to doubt is to
sustain. The theory is that before the act was done or the law was
enacted, earnest studies were made by Congress, or the President,
or both, to insure that the Constitution would not be breached. This
Court, however, may declare a law, or portions thereof,
unconstitutional where a petitioner has shown a clear and
unequivocal breach of the Constitution, not merely a doubtful or
argumentative one. In other words, before a statute or a portion
thereof may be declared unconstitutional, it must be shown that the
statute or issuance violates the Constitution clearly, palpably and
plainly, and in such a manner as to leave no doubt or hesitation in the
mind of the Court.53
Clearly, the acts of the President, in the exercise of his or her power,
is preliminarily presumed constitutional such that the party
challenging the constitutionality thereof (the executive act) on equal
protection grounds bears the heavy burden of showing that the official
act is arbitrary and capricious.54
161
Indeed, laws or executive orders, must comply with the basic
requirements of the Constitution, and as challenged herein, the equal
protection of the laws. Nonetheless, only in clear cases of invalid
classification violative of the equal protection clause will this Court
strike down such laws or official actions.
Third, petitioner Members of the House of Representatives are not
proper parties to challenge the constitutionality of E.O. No. 1 on equal
protection grounds. Petitioner Members of the House of
Representatives cannot take up the lance for the previous
administration. Under all three levels of scrutiny earlier discussed,
they are precluded from raising the equal protection of the laws
challenge. The perceptive notation by my esteemed colleague,
Justice Carpio Morales, in her dissent, comes to life when she
observes that petitioner Members of the House of Representatives
cannot vicariously invoke violation of equal protection of the laws.
Even assuming E.O. No. 1 does draw a classification, much less an
unreasonable one, petitioner Members of the House of
Representatives, as well as petitioner Biraogo, are not covered by the
supposed arbitrary and unreasonable classification.
If we applied both intermediate and strict scrutiny, the nakedness of
petitioners’ arguments are revealed because they do not claim
violation of any of their fundamental rights, nor do they cry
discrimination based on race, gender and illegitimacy. Petitioners’
equal protection clause challenge likewise dissolves when calibrated
against the purpose of E.O. No. 1 and its supposed classification of
the administration which the Truth Commission is tasked to
investigate. Nowhere in the pleadings of petitioners and their claim of
violation of separation of powers and usurpation of legislative power
by the executive is it established how such violation or usurpation
translates to violation by E.O. No. 1 of the equal protection of the
laws. Thus, no reason exists for the majority to sustain the challenge
of equal protection if none of the petitioners belong to the class,
claimed by the majority to be, discriminated against.
Finally, I wish to address the proposition contained in Justice Brion’s
concurrence— the creation of the Truth Commission has a
reasonable objective, albeit accomplished through unreasonable
means. According to him, E.O. No. 1 is objectionable on due process
grounds as well. He propounds that the "truth-telling" function of the
Truth Commission violates due process because it primes the public
to accept the findings of the Commission as actual and gospel truth.
Considering all the foregoing discussion, I must, regrettably, disagree
with the suggestion. Peculiar to our nation is a verbose Constitution.
Herein enshrined are motherhood statements— exhortations for
public officers to follow. A quick perusal of E.O. No. 1 bears out a
similar intonation. Although the Solicitor General may have made
certain declarations, read as admissions by the other Members of this
Court, these cannot bind the Supreme Court in interpreting the
constitutional grant of executive power. The matter is simply a failure
of articulation which cannot be used to diminish the power of the
executive. On the whole, the erroneous declarations of the Solicitor
General, preempting and interpreting the President’s exercise of
executive power beyond the articulated purpose of E.O. No. 1, are
not equivalent to the wrongful exercise by the President of executive
power.
Let me then close this dissertation with Marcos v. Manglapus55 which
trailblazed and redefined the extent of judicial review on the powers
of the co-equal branches of government, in particular, executive
power:
Under the Constitution, judicial power includes the duty to "determine
whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the party of any branch or
instrumentality of the Government." xxx
The present Constitution limits resort to the political question doctrine
and broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond
the Court’s jurisdiction the determination which is exclusively for the
President, for Congress or for the people themselves through a
plebiscite or referendum. We cannot, for example, question the
President’s recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the
beneficiary is totally undeserving of the grant. Nor can we amend the
Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
162
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberation of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial review
but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the
Constitution limits the determination to whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the official whose action is being questioned. If grave
abuse is not established, the Court will not substitute its judgment for
that of the official concerned and decide a matter which by its nature
or by law is for the latter alone to decide. In this light, it would appear
clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining "judicial power," which specifically empowers
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, incorporates in the fundamental law the ruling in
Lansang v. Garcia that:
Article VII of the [1935] Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and
when he acts within the sphere allotted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to
check—not to supplant—the Executive, or to ascertain merely
whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine
the wisdom of his act.
It is for the foregoing reasons that I vote to DISMISS the petitions.
ANTONIO EDUARDO B. NACHURA 15
G.R. No.L-30852, February 26, 1988, 158 SCRA 158.
Associate Justice
16
Sinco, Philippine Political Law (10th ed.), p. 260.

17
See Marcos v. Manglapus, G.R. No. 88211, September 15,
Footnotes 1989, 178 SCRA 760.

1
SEC. 17. The President shall have control of all the 18
See Chapter 8, Title II, Book III of the Administrative Code.
executive departments, bureau and offices. He shall ensure
that the laws be faithfully executed. Section 31, Chapter 10, Title III, Book III of the
19

Administrative Code.
2
G.R. No. 171396, May 3, 2006, 489 SCRA 160.
Section 2, Chapter 1, Book IV of the 1987 Administrative
20
3
Fernandez v. Sto. Tomas, 312 Phil. 235, 247 (1995). Code.

4
50 Phil. 259 (1927). 21
Ople v. Torres, 354 Phil 949 (1998).

5
Section 1. The executive power shall be vested in the 22
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
President of the Philippines.
23
G.R Nos. 142801-142802, July 10, 2001, 360 SCRA 718.
6
Cruz, Philippine Political Law (2005 ed.), p. 182.
24
G.R. No. 152845, August 5, 2003, 408 SCRA 337.
7
G.R. No. 143481, February 15, 2002.
25
Sinco, Philippine Political Law, p. 261,
8
Sec. 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the 26
See Tañada v. Angara, 338 Phil. 546 (1997), where the
laws be faithfully executed. Court did not "review the wisdom of the President and the
Senate in enlisting the country into the WTO, or pass upon
9
Cruz, Philippine Political Law (2005 ed.), p. 213. the merits of trade liberalization as a policy espoused by the
said international body." The issue passed upon by the Court
10
Id. at 216. was limited to determining whether there had been a grave
abuse of discretion amounting to lack or excess of jurisdiction
11
354 Phil. 948 (1998). on the part of the Senate in ratifying the WTO Agreement and
its three annexes.
12
97 Phil. 143 (1955).
British American Tobacco v. Camacho, G.R. No. 163583,
27

13
Cruz, Philippine Political Law (2005 ed.), pp. 211-212. August 20, 2008, 562 SCRA 511.

14
101 Phil. 328 (1957).
163
28
Victoriano v. Elizalde Rope Workers’ Union, 158 Phil. 60 44
Section 2, Book III, Title I, Administrative Code.
(1974).
45
CONSTITUTION, Section 28, Article II.
29
Coconut Oil Refiners Association v. Torres, 503 Phil. 42,
53-54 (2005). 46
CONSTITUTION, Section 17, Article VII.
30
British American Tobacco, v. Camacho, et al., supra note 47
CONSTITUTION, Section, 5, Article VII.
27.
48
See Annex "A" of the Respondent’s Memorandum.
31
California Law Review 1929, December 1985.
49
See: Miller v. Wilson, 236 U.S. 373, 384, 35 S. Ct. 342, 59
32
G.R. No. 118127, April 12, 2005, 455 SCRA 308. L. Ed. 628 (1915).

33
487 Phil. 531 (2004). 50
See People v. Dumlao, G.R. No. 168198, March 2, 2009,
580 SCRA 409 citing Santos v. People and People v. Dela
34
Supra note 27. Piedra.

35
Prince Eric Fuller v. State of Oregon, 417 U.S., 40, 94 51
G.R. No. 121777, January 24, 2001, 350 SCRA 163.
S.Ct.2116, 40 L.Ed.2d 577.
52
State v. Hatori, 92 Hawaii 217, 225 [1999] citing State v.
36
Calvin Massey, Roadmap of Constitutional Law, Aspen Law Sturch, 82 Hawaii 269, 276 [1996].
& Business, 1997, p. 301.
53
Coconut Oil Refiners Association, Inc., et al. v. Hon. Ruben
37
450 U.S. 464, 101 S.Ct. 1200, U.S. Cal., 1981, March 23, Torres, et. al., 503 Phil. 42, 53-54 (2005).
1981.
54
People v. Dela Piedra, 403 Phil. 31 (2001).
38
Id.
55
G.R. No. 88211, September 15, 1989, 177 SCRA 668, 695-
Massey, Roadmap of Constitutional Law, Aspen Law &
39
697.
Business, 1997, p. 301.

40
Id. at 302-302. The Lawphil Project - Arellano Law Foundation

41
Id. at 303.

42
Id. CONCURRING OPINION

43
Id. at 299. LEONARDO-DE CASTRO, J.:

164
I concur in the result of the ponencia of Justice Jose Catral Mendoza
and join the separate opinions of my colleagues, Chief Justice
Renato C. Corona, Justice Arturo D. Brion and Justice Jose Portugal
Perez. I vote to declare Executive Order No. 1 (EO No. 1)
unconstitutional, as a well-intentioned, but ill-devised, presidential
issuance that transgresses the boundaries of executive power and
responsibility set by the Constitution and our laws.
While I agree with the majority consensus that equal protection is an
issue that must be resolved in these consolidated petitions, the
weightier legal obstacles to the creation of the Philippine Truth
Commission (the Commission) by executive order deserve greater
attention in this discussion.
If the Commission created by EO No. 1 were a living person, it would
be suffering from the most acute identity crisis. Is it an independent
body? Is it a mere ad hoc fact-finding body under the control of the
President? And in either case, what legal repercussion does its
creation have on our constitutionally and statutorily developed system
for investigating and prosecuting graft and corruption cases?
Indeed, from the answers to these questions, it becomes evident that
those who have designed this constitutional anomaly designated as a
"truth commission" have painted themselves into a legal corner with
no escape.
If the Commission is an office independent of the President, then its
creation by executive fiat is unconstitutional.
The concept of a "truth commission" in other jurisdictions has a
primordial characteristic – independence. As a body created to
investigate and report on the "truth" of historical events (ordinarily
involving State violations of human rights en masse) in a country in
transition from an authoritarian regime to a democratic one or from a
conflict situation to one of peace, the freedom of the members of the
truth commission from any form of influence is paramount to ensure
the credibility of any findings it may make.
Thus, "truth commissions" have been described in this wise:
165
Truth commissions are non-judicial, independent panels of inquiry
typically set up to establish the facts and context of serious violations
of human rights or of international humanitarian law in a country’s
past. Commissions’ members are usually empowered to conduct
research, support victims, and propose policy recommendations to
prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past abuses,
or formally acknowledge them. They may aim to prepare the way for
prosecutions and recommend institutional reforms. Most
commissions focus on victims’ needs as a path toward reconciliation
and reducing conflict about what occurred in the past.1 (Emphases
supplied.)
Notably, the Office of the United Nations High Commissioner for
Human Rights likewise lists operational independence as one of the
core principles in the establishment of a truth commission:
The legitimacy and public confidence that are essential for a
successful truth commission process depend on the commission’s
ability to carry out its work without political interference. Once
established, the commission should operate free of direct influence or
control by the Government, including in its research and
investigations, budgetary decision-making, and in its report and
recommendations. Where financial oversight is needed, operational
independence should be preserved. Political authorities should give
clear signals that the commission will be operating
independently.2 (Emphases supplied.)
With due respect, I disagree with Justice Antonio T. Carpio’s opinion
that the naming of the body created by EO No. 1 as the "Philippine
Truth Commission" was a mere attempt to be novel, to depart from
the tired and repetitious scheme of naming a commission after its
appointed head/leader or of calling it a "fact-finding" body. Obviously,
the title given to the Commission is meant to convey the message
that it is independent of the Office of the President.
Those who dissent from the majority position gloss over the fact that
EO No. 1 itself expressly states that the Commission’s members shall
"act as an independent collegial body."3 During oral arguments, the
Solicitor General confirmed that what EO No. 1 intended is for the
Commission to be an independent body over which the President has
no power of control.4 The Solicitor General further claimed that one of
the functions of the Commission is "truth-telling." Verily, the creation
of the Philippine Truth Commission and its naming as such were
done as a deliberate reference to the tradition of independent truth
commissions as they are conceived in international law, albeit
adapted to a particular factual situation in this jurisdiction.
If this Philippine Truth Commission is an office independent of the
President and not subject to the latter’s control and supervision, then
the creation of the Commission must be done by legislative action
and not by executive order. It is undisputed that under our
constitutional framework only Congress has the power to create
public offices and grant to them such functions and powers as may
be necessary to fulfill their purpose. Even in the international sphere,
the creation of the more familiar truth commissions has been done by
an act of legislature.5
Neither can the creation of the Commission be justified as an
exercise of the delegated legislative authority of the President to
reorganize his office and the executive department under Section 31,
Chapter 10, Title III, Book III of the Administrative Code of 1987. The
acts of reorganization authorized under said provision are limited to
the following:
SEC. 31. Continuing Authority of the President to Reorganize his
Office. The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall
have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may
take any of the following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common Support System, by abolishing, consolidating or
merging units thereof or transferring functions from one unit to
another;
(2) Transfer any function under the Office of the President to
any other Department or Agency as well astransfer
166
functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other Departments or
Agencies. (Emphases supplied.)
There is nothing in EO No. 1 that indicates that the Commission is a
part of the executive department or of the Office of the President
Proper. Indeed, it is Justice Carpio who suggests that the President
may appoint the commissioners of the Philippine Truth Commission
as presidential special assistants or advisers in order that the
Commission be subsumed in the Office of the President Proper and
to clearly place EO No. 1 within the ambit of Section 31. To my mind,
the fact that the commissioners are proposed to be appointed as
presidential advisers is an indication that the Philippine Truth
Commission was initially planned to be independent of the President
and the subsequent appointment of the commissioners as
presidential advisers will be merely curative of the patent defect in the
creation of the Commission by an Executive Order, as an
independent body.
I agree with Justice Brion that what EO No. 1 sought to accomplish
was not a mere reorganization under the delegated legislative
authority of the President. The creation of the Philippine Truth
Commission did not involve any restructuring of the Office of the
President Proper nor the transfer of any function or office from the
Office of the President to the various executive departments and vice-
versa. The Commission is an entirely new specie of public office
which, as discussed in the concurring opinions, is not exercising
inherently executive powers or functions but infringing on functions
reserved by the Constitution and our laws to other offices.
If the Commission is under the control and supervision of the
President, and not an independent body, the danger that the
Commission may be used for partisan political ends is real and not
imagined.
For the sake of argument, let us accept for the moment the
propositions of our dissenting colleagues that:
(a) The Commission is not a separate public office
independent of the President;
(b) The Commission is an executive body (or a part of the
Office of the President Proper) that may be created by the
President through an executive order under Section 31; and
(c) The Commission is merely an ad hoc fact-finding body
intended to apprise the President of facts that will aid him in
the fulfillment of his duty to ensure the faithful execution of the
laws.
If the foregoing statements are true, then what EO No. 1 created is a
body under the control and supervision of the President. In fact, if the
commissioners are to be considered special advisers to the
President, the Commission would be a body that serves at the
pleasure of the President. Proponents who support the creation of the
Commission in the manner provided for under EO No. 1 should drop
all arguments regarding the purported independence and objectivity
of the proceedings before it.
Indeed, EO No. 1 itself is replete with provisions that indicate that the
existence and operations of the Commission will be dependent on the
Office of the President. Its budget shall be provided by the Office of
the President6 and therefore it has no fiscal autonomy. The reports of
the Commission shall be published upon the directive of the
President.7 Further, if we follow the legal premises of our dissenting
colleagues to their logical conclusion, then the Commission as a body
created by executive order may likewise be abolished (if it is part of
the Presidential Special Assistants/Advisers System of the Office of
the President Proper) or restructured by executive order. EO No. 1
may be amended, modified, and repealed all by executive order.
More importantly, if the Commission is subject to the power of control
of the President, he may reverse, revise or modify the actions of the
Commission or even substitute his own decision for that of the
Commission.
167
Whether by name or by nature, the Philippine Truth Commission
cannot be deemed politically "neutral" so as to assure a completely
impartial conduct of its purported fact-finding mandate. I further
concur with Chief Justice Corona that attempts to "sugar coat" the
Philippine Truth Commission’s functions as "harmless" deserve no
credence.
The purported functions to be served by the Commission, as the
concurring opinions vividly illustrate, will subvert the functions of the
Ombudsman and the constitutional and statutory developed criminal
justice system.
First, it is apparent on the face of EO No. 1 that in general "it is
primarily tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption [of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the
people], involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if
any, during the previous administration."8 I agree with the Chief
Justice’s proposition that there is no law authorizing the President to
create a body to investigate persons outside the executive
department in relation to graft and corruption cases, concurrently with
the Office of the Ombudsman which has such express legal authority.
Indeed, even in jurisprudence, the instances when the power of the
President to investigate and create ad hoc committees for that
purpose were upheld have been usually related to his power of
control and discipline over his subordinates or his power of
supervision over local government units.
In Ganzon v. Kayanan,9 a case involving the investigation of a mayor,
we held that the power of the President to remove any official in the
government service under the Revised Administrative Code and his
constitutional power of supervision over local governments were the
bases for the power of the President to order an investigation of any
action or the conduct of any person in the government service, and to
designate the official committee, or person by whom such
investigation shall be conducted.
In Larin v. Executive Secretary,10 where the petitioner subject of the
investigation was an Assistant Commissioner in the Bureau of
Internal Revenue, we held that:
Being a presidential appointee, he comes under the direct disciplining
authority of the President. This is in line with the well settled principle
that the "power to remove is inherent in the power to appoint"
conferred to the President by Section 16, Article VII of the
Constitution. Thus, it is ineluctably clear that Memorandum Order No.
164, which created a committee to investigate the administrative
charge against petitioner, was issued pursuant to the power of
removal of the President. x x x.11 (Emphases supplied.)
In a similar vein, it was ruled in Joson v. Executive Secretary,12 that:
The power of the President over administrative disciplinary cases
against elective local officials is derived from his power of general
supervision over local governments. Section 4, Article X of the 1987
Constitution provides:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions."
The power of supervision means "overseeing or the authority of an
officer to see that the subordinate officers perform their duties. If the
subordinate officers fail or neglect to fulfill their duties, the official may
take such action or step as prescribed by law to make them perform
their duties. The President's power of general supervision means no
more than the power of ensuring that laws are faithfully executed, or
that subordinate officers act within the law. Supervision is not
incompatible with discipline. And the power to discipline and ensure
that the laws be faithfully executed must be construed to authorize
the President to order an investigation of the act or conduct of local
officials when in his opinion the good of the public service so
requires.13 (Emphases ours.)
Still on the same point, Department of Health v.
Camposano14 likewise discussed that:
168
The Chief Executive’s power to create the Ad Hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such validity is
not affected by the fact that the investigating team and the PCAGC
had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry.15 (Emphases supplied.)
Second, the functions of the Commission, although ostensibly only
recommendatory, are basically prosecutorial in nature and not
confined to objective fact finding. EO No. 1 empowers the
Commission to, among others:
SECTION 2. x x x.
xxxx
(b) Collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate, and to this end require any agency, official or employee
of the Executive Branch, including government-owned or controlled
corporations, to produce documents, books, records and other
papers;
xxxx
(g) Turn over from time to time, for expeditious prosecution to the
appropriate prosecutorial authorities, by means of a special
or interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent
applicable laws. (Emphasis ours.)
I agree with Justice Perez that the aforementioned functions run
counter to the very purpose for the creation of the Office of the
Ombudsman, to constitutionalize a politically independent office
responsible for public accountability as a response to the negative
experience with presidential commissions. His discussion on the
constitutional history of the Office of the Ombudsman and the
jurisprudential bases for its primary jurisdiction over cases cognizable
by the Sandiganbayan (i.e., specific offenses, including graft and
corruption, committed by public officials as provided for in
Presidential Decree No. 1606, as amended) is apropos indeed.
I likewise find compelling Justice Brion’s presentation regarding the
Commission’s "truth-telling" function’s potential implications on due
process rights and the right to a fair trial and the likelihood of
duplication of, or interference with, the investigatory or adjudicatory
functions of the Ombudsman and the courts. I need not repeat
Justice Brion’s comprehensive and lucid discussion here. However, I
do find it fitting to echo here former Chief Justice Claudio Teehankee,
Sr.’s dissenting opinion in Evangelista v. Jarencio,16 the oft-cited
authority for the President’s power to investigate, where he stated
that:
The thrust of all this is that the State with its overwhelming and vast
powers and resources can and must ferret out and investigate
wrongdoing, graft and corruption and at the same time respect the
constitutional guarantees of the individual's right to privacy, silence
and due process and against self-incrimination and unreasonable
search and seizure. x x x.17 (Emphases ours.)
The constitutional mandate for public accountability and the present
administration’s noble purpose to curb graft and corruption simply
cannot justify trivializing individual rights equally protected under the
Constitution. This Court cannot place its stamp of approval on
executive action that is constitutionally abhorrent even if for a
laudable objective, and even if done by a President who has the
support of popular opinion on his side. For the decisions of the Court
to have value as precedent, we cannot decide cases on the basis of
personalities nor on something as fickle and fleeting as public
sentiment. It is worth repeating that our duty as a Court is to uphold
the rule of law and not the rule of men.
Concluding Statement
169
Section 1, Article VIII of the 1987 Constitution 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.
Undeniably, from the foregoing, judicial review is not only a power but
a constitutional duty of the courts. The framers of our Constitution
found an imperative need to provide for an expanded scope of review
in favor of the "non-political" courts as a vital check against possible
abuses by the political branches of government. For this reason, I
cannot subscribe to Justice Maria Lourdes Sereno’s view that the
Court’s exercise of its review power in this instance is tantamount to
supplanting the will of the electorate. A philosophical view that the
exercise of such power by the Judiciary may from a certain
perspective be "undemocratic" is not legal authority for this Court to
abdicate its role and duty under the Constitution. It also ignores the
fact that it is the people by the ratification of the Constitution who has
given this power and duty of review to the Judiciary.
The insinuations that the members of the majority are impelled by
improper motives, being countermajoritarian and allowing graft and
corruption to proliferate with impunity are utterly baseless. Not only
are these sort of ad hominem attacks and populist appeals to emotion
fallacious, they are essentially non-legal arguments that have no
place in a debate regarding constitutionality. At the end of the day,
Justices of this Court must vote according to their conscience and
their honest belief of what the law is in a particular case. That is what
gives us courage to stand by our actions even in the face of the
harshest criticism. Those who read our opinions, if they are truly
discerning, will be able to determine if we voted on points of law and
if any one of us was merely pandering to the appointing power.
Needless to say, this Court will fully support the present
administration’s initiatives on transparency and accountability if
implemented within the bounds of the Constitution and the laws that 9
104 Phil. 483 (1958).
the President professes he wishes to faithfully execute. Unfortunately,
in this instance, EO No. 1 fails this ultimate legal litmus test. 10
345 Phil. 962 (1997).

TERESITA J. LEONARDO-DE CASTRO 11

Id. at 974.
Associate Justice
12
352 Phil. 888 (1998).

13
Id. at 913-914.
Footnotes
14
496 Phil. 886 (2005).
1
From the website of the International Center for Transitional
Justice, http://ictj.org/en/tj/138.html, accessed on December 15
Id. at 896-897.
6, 2010.
16
160-A Phil. 753 (1975).
2
Rule-of-Law Tools for Post-Conflict States: Truth
Commissions, Office of the United Nations High 17
Id. at 776.
Commissioner for Human Rights, United Nations, New York
and Geneva (2006) at p. 6.
The Lawphil Project - Arellano Law Foundation
3
Section 1, EO No. 1.

4
TSN, September 28, 2010, pp. 209-215, cited in the
Separate Opinion of Justice Brion. SEPARATE CONCURRING OPINION
5
To cite a few examples: The South African "Truth and PERALTA, J.:
Reconciliation Commission" was established under the
Promotion of National Unity and Reconciliation Act 34 of 1995
On July 30, 2010, President Benigno Simeon C. Aquino III issued
passed by that country’s parliament. The "National Unity and
Executive Order (E.O.) No. 1 creating the Philippine Truth
Reconciliation Commission" in Rwanda was officially set up in
Commission of 2010 (Truth Commission), which is "primarily tasked
1999 by an act of the Transitional National Assembly.
to conduct a thorough fact-finding investigation of reported cases of
graft and corruption x x x involving third level public officers and
6
Section 11 of EO No. 1. higher, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration and
7
Section 15 of EO No. 1. thereafter submit its findings and recommendations to the President,
Congress and the Ombudsman."
8
Section 2, EO No. 1 with phrase in brackets supplied from
Section 1. Petitioners filed their respective petitions questioning the
constitutionality of E.O. No. 1. In G.R. No. 193036, petitioners, as

170
members of the House of Representatives, have legal standing to
impugn the validity of E.O. No. 1, since they claim that E.O. No. 1
infringes upon their prerogatives as legislators.1 In G.R. No. 192935,
petitioner, who filed his petition as a taxpayer, may also be accorded
standing to sue, considering that the issues raised are of
transcendental importance to the public.2 The people await the
outcome of the President’s effort to implement his pledge to find out
the truth and provide closure to the reported cases of graft and
corruption during the previous administration. The constitutional
issues raised by petitioners seek the determination of whether or not
the creation of the Truth Commission is a valid exercise by the
President of his executive power.
Petitioners contend that E.O. No. 1 is unconstitutional, because only
Congress may create a public office, pursuant to Section 1, Article VI
of the Constitution.3
Respondents, through the Office of the Solicitor General (OSG),
counter that the issuance of E.O. No. 1 is mainly supported by
Section 17, Article VII of the Constitution,4 Section 31, Title III, Book
III of E.O. No. 292, and Presidential Decree (P.D.) No. 1416, as
amended by P.D. No. 1772.
Quoted in E.O. No. 1 as the legal basis for its creation is Section 31,
Title III, Book III of E.O. No. 292, otherwise known as the Revised
Administrative Code of 1987, which provides:
SEC. 31. Continuing Authority of the President to Reorganize his
Office. – The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating
or merging units thereof or transferring functions from one unit
to another;
171
(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments and
agencies.
In Bagaoisan v. National Tobacco Administration,5 the Court held that
the first sentence of the law is an express grant to the President of a
continuing authority to reorganize the administrative structure of the
Office of the President. Section 31(1) of Executive Order No. 292
specifically refers to the President’s power to restructure the internal
organization of the Office of the President Proper, by abolishing,
consolidating or merging units thereof or transferring functions from
one unit to another.6 Section 31(2) and (3) concern executive offices
outside the Office of the President Proper allowing the President to
transfer any function under the Office of the President to any other
department or agency and vice-versa, and the transfer of any agency
under the Office of the President to any other department or agency
and vice-versa.7
Thus, the reorganization in Section 31 involves abolishing,
consolidating or merging units in the Office of the President Proper or
transferring functions from one unit to another in the Office of the
President Proper, and the transfer of any function or any agency
under the Office of the President to any other department or agency
and vice-versa. Nowhere is it stated that the President can create an
office like the Truth Commission, which does not result from any
reorganization under Section 31. Hence, the said section cannot be
used to justify the creation of the Truth Commission.
Moreover, in its Comment, the OSG stated that one of the bases for
the creation of E.O. No. 1 is P.D. No. 1416, as amended by P.D. No.
1772, which amendment was enacted by President Ferdinand E.
Marcos on January 15, 1981.
P.D. No. 1416, as amended, is inapplicable as basis in the creation of
the Truth Commission, since it was intended by President Ferdinand
E. Marcos to promote efficiency and flexibility in the organization of
the national government to strengthen the government bureaucracy
when the government was in the transition from presidential to the
parliamentary form of government. This is evident in the preamble of
P.D. No. 1416,8 which states:
WHEREAS, the transition toward the parliamentary form of
government will necessitate flexibility in the organization of the
national government; x x x9
The OSG admitted during the oral argument10 that the 1987
Constitution ended the power of the President to reorganize the
national government. It is noted that President Ferdinand E. Marcos
exercised legislative power concurrently with the interim Batasang
Pambansa (1976) and, subsequently, with the regular Batasang
Pambansa (1984).11 After the February 1986 revolution, President
Corazon C. Aquino assumed revolutionary legislative power, and
issued Proclamation No. 3, the Provisional Freedom Constitution.
Section 3, Article I of Proclamation No. 3 abolished the Batasang
Pambansa, while Section 1, Article II of the said Proclamation vested
legislative power in the President until a legislature would be elected
and convened under a new Constitution. Thus, Section 6, Article
XVIII (Transitory Provisions) of the 1987 Constitution provides that
"[t]he incumbent President (President Corazon Aquino) shall continue
to exercise legislative powers until the first Congress is convened."12
In view of the foregoing, the decision in Larin v. Executive
Secretary13 insofar as P.D. No. 1416, as amended by P.D. No. 1772,
is cited as a law granting the President the power to reorganize,
needs to be re-examined.
Assuming that P.D. No. 1416, as amended, is still a valid law, it
cannot be the basis of the creation of the Truth Commission, because
all the cases, from Larin v. Executive Secretary;14 Buklod ng
Kawaning EIIB v. Zamora;15Secretary of the Department of
Transportation and Communications v. Mabalot;16 Bagaoisan v.
National Tobacco Administration;17 Department of Environment and
Natural Resources v. DENR Region 12 Employees;18 Tondo Medical
Center Employees Association v. Court of Appeals;19 Malaria
172
Employees and Workers Association of the Philippines, Inc.
(MEWAP) v. Romulo20 to Banda v. Ermita,21 which cited P.D. No.
1416, as amended, as a basis to reorganize, involved reorganization
or streamlining of an agency of the Executive Department. However,
the Truth Commission was not created for streamlining purposes.
The purpose of reorganization under P.D. No. 1416, as amended by
P.D. No. 1772, is to "promote simplicity, economy and efficiency in
the government to enable it to pursue programs consistent with
national goals for accelerated social and economic development, and
to improve upon the services of the government in the transaction of
the public business."
The creation of the Truth Commission, however, is not to promote
simplicity, economy and efficiency in the government. The Truth
Commission is primarily tasked to conduct fact-finding investigation of
reported cases of graft and corruption involving third level public
officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration of
President Gloria Macapagal-Arroyo, which separate investigative
body, as stated in the preamble, "will recommend the prosecution of
the offenders and secure justice for all." It is, in part, the
implementation of the pledge of President Benigno Aquino, Jr. during
the last election that if elected, he would end corruption and the evil it
breeds.
In its Memorandum, the OSG justifies the power of the President to
create the Truth Commission based on his authority to create ad hoc
fact-finding committees or offices within the Office of the President,
which authority is described as an adjunct of his plenary executive
power under Section 1 and his power of control under Section 17,
both of Article VII of the Constitution.22 It cited the case of Department
of Health v. Camposano,23 which held:
The Chief Executive’s power to create the Ad Hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such validity is
not affected by the fact that the investigating team and the PCAGC
had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry.
To clarify, the power of control is "the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former for that of the latter;"24hence, it cannot be the basis of creating
the Truth Commission.
The ponencia justifies the creation of the Truth Commission based on
the President’s duty to ensure that the laws be faithfully executed
under Section 17, Article VII of the Constitution, thus:
Sec. 17. The President shall have control of all executive
departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.25
According to the ponencia, to ascertain if laws are faithfully executed,
the President has the power to create ad hoc investigating
committees, which power has been upheld in Department of Health v.
Camposano.26 In the said case, some concerned employees of the
Department of Health (DOH)-National Capital Region (NCR) filed a
complaint before the DOH Resident against certain officers of the
DOH arising from alleged anomalous purchase of medicines. The
Resident Ombudsman submitted an investigation report to the
Secretary of Health recommending the filing of a formal
administrative charge of Dishonesty and Grave Misconduct against
the respondents. Subsequently, the Secretary of Health filed a formal
charge against the respondents for Grave Misconduct, Dishonesty,
and Violation of Republic Act No. 3019. Thereafter, the Executive
Secretary issued Administrative Order No. 298, creating an ad hoc
committee to investigate the administrative case filed against the
DOH-NCR employees. The said Administrative Order was indorsed to
the Presidential Commission Against Graft and Corruption (PCAGC),
which found the respondents guilty as charged and recommended
their dismissal from the government. However, the Court overturned
the dismissal of respondents by the Secretary of DOH, because
respondents were denied due process, but it declared valid the
creation of the ad hoc committee, thus:
173
x x x The investigation was authorized under Administrative Order
No. 298 dated October 25, 1996, which had created an Ad Hoc
Committee to look into the administrative charges filed against
Director Rosalinda U. Majarais, Priscilla G. Camposano, Horacio D.
Cabrera, Imelda Q. Agustin and Enrique L. Perez.
The Investigating Committee was composed of all the members of
the PCAGC: Chairman Eufemio C. Domingo, Commissioner Dario C.
Rama and Commissioner Jaime L. Guerrero. The Committee was
directed by AO 298 to "follow the procedure prescribed under Section
38 to 40 of the Civil Service Law (PD 807), as amended." It was
tasked to "forward to the Disciplining Authority the entire records of
the case, together with its findings and recommendations, as well as
the draft decision for the approval of the President."
The Chief Executive’s power to create the Ad Hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such validity is
not affected by the fact that the investigating team and the PCAGC
had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry.27
The ponencia stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow inquiry into matters which the
President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and
enforcement of the laws of the land. The ponencia stated that this
was also the objective of investigative bodies created in the past like
the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission and the Zenarosa Commission. Hence, the ponencia
held that the President’s power to create investigative bodies cannot
be denied.
Albeit the President has the power to create ad hoc committees to
investigate or inquire into matters for the guidance of the President to
ensure that the laws be faithfully executed, I am of the view that the
Truth Commission was not created in the nature of the
aforementioned ad hoc investigating/fact-finding bodies. The Truth
Commission was created more in the nature of a public office.
Based on the creation of ad hoc investigating bodies in Department of
Health v. Camposano and Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto,28 the members of an ad hoc
investigative body are heads and representatives of existing
government offices, depending on the nature of the subject matter of
the investigation. The ad hoc investigating body’s functions are
primarily fact-finding/investigative and recommendatory in nature.29
In this case, the members of the Truth Commission are not officials
from existing government offices. Moreover, the Truth Commission
has been granted powers of an independent office as follows:
1. Engage or contract the services of resource persons,
professionals and other personnel determined by it as
necessary to carry out its mandate;30
2. Promulgate its rules and regulations or rules of procedure it
deems necessary to effectively and efficiently carry out the
objectives of this Executive Order and to ensure the orderly
conduct of its investigations, proceedings and hearings,
including the presentation of evidence.31
3. The Truth Commission shall have the power to engage the
services of experts as consultants or advisers as it may deem
necessary to accomplish its mission.32
In addition, the Truth Commission has coercive powers such as the
power to subpoena witnesses.33 Any government official or personnel
who, without lawful excuse, fails to appear upon subpoena issued by
the Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action.34 Any private person who does the same may be
dealt with in accordance with law.35 Apparently, the grant of such
powers to the Truth Commission is no longer part of the executive
power of the President, as it is part of law-making, which legislative
power is vested in Congress.36 There are only two instances in the
174
Constitution wherein Congress may delegate its law-making authority
to the President:37
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of
both houses in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.
(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.
Article VI, Sec. 28. (1) The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of
taxation.
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
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.38
Although the President may create investigating bodies to help him in
his duty to ensure that the laws are faithfully executed, he cannot be
allowed to encroach on or usurp the law-making power of the
Legislature in the creation of such investigative bodies.
Moreover, the Truth Commission’s function is questioned on the
ground that it duplicates, if not supersedes, the function of the Office
of the Ombudsman. The OSG avers that the Ombudsman’s power to
investigate is not exclusive, but is shared with other similarly
authorized agencies, citing Ombudsman v. Galicia.39
Based on Section 2 of E.O. No. 1, the powers and functions of the
Truth Commission do not supplant the powers and functions of the
Ombudsman.40 Nevertheless, what is the use of the Truth
Commission if its power is merely recommendatory? Any finding of
graft and corruption by the Truth Commission is still subject to
evaluation by the Office of the Ombudsman, as it is only the Office of
the Ombudsman that is empowered to conduct preliminary
investigation, determine the existence of probable cause and
prosecute the case. Hence, the creation of the Truth Commission will
merely be a waste of money, since it duplicates the function of the
Office of the Ombudsman to investigate reported cases of graft and
corruption.
Further, E.O. No. 1 violates that equal protection clause enshrined in
the Constitution. The guarantee of equal protection of the laws means
that no person or class of persons shall be denied the same
protection of laws which is enjoyed by other persons or other classes
in like circumstances.41
In this case, investigation by the Truth Commission covers only third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration of former President Gloria Macapagal-Arroyo.42
The OSG, however, counters in its Memorandum that the equal
protection clause of the Constitution is not violated, because although
E.O. No. 1 names the previous administration as the initial subject of
the investigation of cases of graft and corruption, it is not confined to
the said administration, since E.O. No. 1 clearly speaks of the
President’s power to expand its coverage to prior administrations as
follows:
SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to include
the investigation of cases and instances of graft and corruption during
the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.43
As provided above, the mandate of the Truth Commission may be
expanded to include the investigation of cases of graft and corruption
during prior administrations, but it is subject to the "judgment" or
discretion of the President and it may be so extended by way of a
supplemental Executive Order. In the absence of the exercise of
judgment by the President that the Truth Commission shall also
175
conduct investigation of reported cases of graft and corruption during
prior administrations, and in the absence of the issuance of a
supplemental executive order to that effect, E.O. No. 1 covers only
third level public officers and higher, their co-principals, accomplices
and accessories from the private sector, if any, during the previous
administration of former President Gloria Macapagal-Arroyo. This is
admitted by the OSG in its Memorandum44 as it explains that "to
include the past administrations, at this point, may unnecessarily
overburden the Commission and lead it to lose its effectiveness." The
OSG’s position shows more consideration for the burden that the
investigation may cause to the Commission, while losing sight of the
equal protection clause of the Constitution.
The OSG further states that even if the Truth Commission would
solely concern itself with graft and corruption, if there be any, of the
previous administration, there is still no violation of the equal
protection clause. It submits that the segregation of the transactions
of public officers during the previous administration as possible
subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the E.O. seeks to
correct. The distinctions cited are:
1) E.O No. 1 was issued in view of widespread reports of
large scale graft and corruption in the previous administration
which have eroded public confidence in public institutions.
2) The segregation of the preceding administration as the
object of fact-finding investigations is warranted by the reality
that the current administration will most likely bear the
immediate consequences of the policies of the previous
administration, unlike those of the administrations long gone.
3) The classification of the previous administration as a
separate class for investigation lies in the reality that the
evidence of possible criminal activity, the evidence that could
lead to recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anti-corruption
laws are faithfully executed, are more easily established in the
regime that immediately precedes the current administration.
 4) Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues
that are pivotal to national life or even as a routine measure of
due diligence and good housekeeping by a nascent
administration.
Indeed, the equal protection clause of the Constitution allows
classification.45 If the classification is reasonable, the law may operate
only on some and not all of the people without violating the equal
protection clause.46 To be valid, it must conform to the following
requirements: (1) It must be based on substantial distinctions; (2) it
must be germane to the purposes of the law; (3) it must not be limited
to existing conditions only; and (4) it must apply equally to all
members of the class.47
Peralta v. Commission on Elections 48 held:
The equal protection clause does not forbid all legal classifications.
What [it] proscribes is a classification which is arbitrary and
unreasonable. It is not violated by a reasonable classification based
upon substantial distinctions, where the classification is germane to
the purpose of the law and applies equally to all those belonging to
the same class. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who
fall within the class and those who do not. There is, of course, no
concise or easy answer as to what an arbitrary classification is. No
definite rule has been or can be laid down on the basis of which such
question may be resolved. The determination must be made in
accordance with the facts presented by the particular case. The
general rule, which is well-settled by the authorities, is that a
classification, to be valid, must rest upon material differences
between the persons, activities or things included and those
excluded. There must, in other words, be a basis for distinction.
Furthermore, such classification must be germane and pertinent to
the purpose of the law. And, finally, the basis of classification must, in
general, be so drawn that those who stand in substantially the same
position with respect to the law are treated alike.
176
The distinctions cited by the OSG are not substantial to separate the
previous administration as a distinct class from prior administrations
as subject matter for investigation for the purpose of ending graft and
corruption. As stated by the ponencia, the reports of widespread
corruption in the previous administration cannot be taken as a
substantial distinction, since similar reports have been made in earlier
administrations.
Moreover, a valid classification must rest upon material differences
between the persons, or activities or thing included and
excluded.49 Reasonable grounds must exist for making a distinction
between those who fall within the class and those who do not.50 There
is no substantial distinction cited between public officers who may be
involved in reported cases of graft and corruption during the previous
administration and public officers who may be involved in reported
cases of graft and corruption during prior administrations in relation to
the purpose of ending graft and corruption. To limit the investigation
to public officers of the previous administration is violative of the
equal protection clause.
I vote, therefore, to GRANT the petitions as Executive Order No. 1 is
unconstitutional since it violates the equal protection clause of the
Constitution and encroaches on the law-making power of Congress
under Section 1, Article VI of the Constitution.
DIOSDADO M. PERALTA
Associate Justice
Footnotes
1
See David v. Macapagal-Arroyo, G.R. No. 171396, May 3,
2006, 489 SCRA 160.
2
Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375,
May 5, 1994, 232 SCRA 110.
3
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent 19
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
reserved to the people by the provision on initiative and
referendum. 20
G.R. No. 160093, July 31, 2007, 528 SCRA 673.
4
Sec. 17. The President shall have control of all executive 21
G.R. No. 166620, April 20, 2010.
departments, bureaus and offices. He shall ensure that the
laws be faithfully executed. 22
OSG Memorandum, p. 43.
5
G.R. No. 152845, August 5, 2003, 408 SCRA 337. 23
496 Phil. 886, 896-897 (2005).
6
Id. (Emphasis supplied.) Secretary of the Department of Transportation and
24

Communications v. Mabalot, supra note 16.

7
Id. (Emphasis supplied.)
25
Emphasis supplied.
8
Enacted on June 9, 1978.
26
Supra note 23.
9
Emphasis supplied.
27
Department of Health v. Camposano, supra note 23.
10
Conducted on September 28, 2010.
28
G.R. No. 145184, March 14, 2008, 548 SCRA 295. In this
11
Joaquin G. Bernas, S.J., The Constitution of the Republic of case, President Fidel V. Ramos issued on October 8, 1992,
the Philippines, A Commentary, Vol. II, First edition, pp. 70- Administrative Order No. 13 creating the Presidential Ad Hoc
73, citing Legaspi v. Minister of Finance, 115 SCRA 418. Fact-Finding Committee on Behest Loans (Committee), which
(1982). reads:
12
Id. at 73. WHEREAS, Sec. 28, Article II of the 1987 Constitution
provides that "Subject to reasonable conditions
13
G.R. No. 112745, October 16, 1997, 280 SCRA 713. prescribed by law, the State adopts and implements a
policy of full public disclosure of all transactions
14
Id. involving public interest";

15
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718. WHEREAS, Sec. 15, Article XI of the 1987
Constitution provides that "The right of the state to
16
G.R. No. 138200, February 27, 2002, 378 SCRA 128. recover properties unlawfully acquired by public
officials or employees, from them or from their
nominees or transferees, shall not be barred by
17
Supra note 5.
prescription, laches or estoppel";
18
G.R. No. 149724, August 19, 2003, 409 SCRA 359.

177
WHEREAS, there have been allegations of loans, Representative from the
guarantees, or other forms of financial Philippine Export and Foreign
accommodation granted, directly or indirectly, by
government owned and controlled bank or financial Loan Guarantee Corporation - Member
institutions, at the behest, command or urging by
previous government officials to the disadvantage and The Ad Hoc Committee shall perform the following
detriment of the Philippine government and the functions:
Filipino people;
1. Inventory all behest loans; identify the
ACCORDINGLY, an "Ad-Hoc FACT FINDING lenders and borrowers, including the principal
COMMITTEE ON BEHEST LOANS" is hereby created officers and stockholders of the borrowing
to be composed of the following: firms, as well as the persons responsible for
Chairman of the Presidential granting the loans or who influenced the grant
thereof;
Commission on Good Government -
Chairman 2. Identify the borrowers who were granted
"friendly waivers", as well as the government
The Solicitor General - Vice-Chairman officials who granted these waivers; determine
the validity of these waivers;
Representative from the
Office of the Executive Secretary - Member 3. Determine the courses of action that the
government should take to recover those
Representative from the loans, and to recommend appropriate actions
Department of Finance - Member to the Office of the President within sixty (60)
days from the date hereof.
Representative from the
Department of Justice - Member The Committee is hereby empowered to call upon any
department, bureau, office, agency, instrumentality or
Representative from the corporation of the government, or any officer or
Development Bank of the Philippines - employee thereof, for such assistance as it may need
Member in the discharge of its function.

Representative from the 29

See Footnote 28.
Philippine National Bank - Member
30
E.O. No. 1, Section 2 (i).
Representative from the
Asset Privatization Trust - Member 31
E.O. No. 1, Section 2 (j).

Government Corporate Counsel - Member 32

E.O. No. 1, Section 5.

178
33
E.O. No. 1, Section 2 (e). Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft
34
E.O. No. 1. Section 9. and corruption referred to in Section 1, involving third level
public officers and higher, their co-principals, accomplices
35
Id. and accessories from the private sector, if any, during the
previous administration x x x. (Emphasis supplied.)
36
The Constitution, Article VI, Section 1. The legislative power
shall be vested in the Congress of the Philippines which shall
43
Emphasis supplied.
consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on 44
Memorandum, p. 89.
initiative and referendum.
45
Central Bank Employees Association, Inc. v. Bangko
37
Joaquin G. Bernas, S.J., The Constitution of the Republic of Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004,
the Philippines, A Commentary, Vol. II, supra note 11, at 70, 446 SCRA 299, citing Victoriano v. Elizalde Rope Workers’
140-141, 161. Union, 59 SCRA 54. (1974).

38
Emphasis supplied. 46
City of Manila v. Laguio, Jr., G.R. No. 118127, April 12,
2005, 455 SCRA 308, 348.
39
G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
47
Id. at 348-349.
40
Republic Act No. 6770, Section 15. Powers, Functions and
Duties. – The Office of the Ombudsman shall have the 48
No. L-47771, March 11, 1978, 82 SCRA 30.
following powers, functions and duties:
49
Peralta v. Commission on Elections, supra.
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of any 50
Id.
public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over The Lawphil Project - Arellano Law Foundation
cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of
Government, the investigation of such cases x x x. SEPARATE
DISSENTING OPINION
41
City of Manila v. Laguio, Jr., G.R. No. 118127, April 12,
2005, 455 SCRA 308. ABAD, J.:

42
E.O. No. 1, Section 2. Powers and functions.-- The Brief Background
Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
179
As the opinion written for the majority by Justice Jose Catral
Mendoza says, President Benigno Simeon Aquino III (President P-
Noy to distinguish him from former President Corazon C. Aquino)
campaigned on a platform of "kung walang corrupt, walang mahirap."
On being elected President, he issued Executive Order 1,1 creating
the Philippine Truth Commission of 2010 that he tasked with the
investigation of reported corruption during the previous
administration. The Truth Commission is to submit its findings and
recommendations to the President, the Congress, and the
Ombudsman.
Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B.
Albano, Jr., Rep. Simeon A. Datumanong, and Rep. Orlando B. Fua,
Sr. have come to this Court to challenge the Constitutionality of
Executive Order 1.
The Issues Presented
The parties present four issues:
1. Whether or not petitioners have legal standing to challenge
the constitutionality of Executive Order 1;
2. Whether or not Executive Order 1 usurps the authority of
Congress to create and appropriate funds for public offices,
agencies, and commissions;
3. Whether or not Executive Order 1 supplants the powers of
the Ombudsman and the DOJ; and
4. Whether or not Executive Order 1 violates the equal
protection clause in that it singles out the previous
administration for investigation.
Discussion
The majority holds that petitioners have standing before the Court;
that President P-Noy has the power to create the Truth Commission;
that he has not usurped the powers of Congress to create public
offices and appropriate funds for them; and, finally, that the Truth
180
Commission can conduct investigation without supplanting the
powers of the Ombudsman and the Department of Justice since the
Commission has not been vested with quasi-judicial powers. I fully
conform to these rulings.
The majority holds, however, that Executive Order 1 violates the
equal protection clause of the Constitution. It is here that I register my
dissent.
The 1987 Constitution provides in section 1 of Article III (The Bill of
Rights) as follows:
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.
The idea behind the "equal protection clause" is that public authorities
should treat all persons or things equally in terms of rights granted to
and responsibilities imposed on them. As an element of due process,
the equal protection clause bars arbitrary discrimination in favor of or
against a class whether in what the law provides and how it is
enforced.
Take the comic example of a law that requires married women to
wear their wedding rings at all times to warn other men not to entice
women to violate their marriage vows. Such law would be unfair and
discriminatory since married men, who are not covered by it, are
exposed to similar enticements from women other than their wives.
But it would be just as unfair and discriminatory if people who hardly
share anything in common are grouped together and treated
similarly.2 The equal protection clause is not violated by a law that
applies only to persons falling within a specified class, if such law
applies equally to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within it
and those who do not.3
For example, restaurant cooks and waiters cannot complain of
discrimination against an ordinance that requires them but not other
workers to undergo periodic medical check-ups. Such check-ups are
important for food-handlers in the interest of public health but not for
ordinary office clerks. Also, a law that grants a 60-day paid leave to
pregnant workers but not to other workers, male or female, is not
discriminatory since female workers who just had their babies need
more time to care for the latter and make adjustments for going back
to work.
Here, the issue I address is whether or not President P-Noy’s
decision to focus the Truth Commission’s investigation solely on the
reported corruption during the previous administration, implicitly
excluding the corruption during the administrations before it, violates
the equal protection clause. Since absolute equality in treating
matters is not required, the ultimate issue in this case is whether or
not the President has reasonable grounds for making a distinction
between corruptions committed in the recent past and those
committed in the remote past. As a rule, his grounds for making a
distinction would be deemed reasonable if they are germane or
relevant to the purpose for which he created the Truth Commission.4
And what is the President’s purpose in creating the Truth
Commission? This can be inferred from section 1 of Executive Order
1 which states that the Commission’s primary function is to –
xxx seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude that
shock and offend the moral and ethical sensibilities of the people,
committed by public officials and employees, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration, and thereafter recommend the
appropriate action to be taken thereon to ensure that the full measure
of justice shall be served without fear or favor.
Evidently, the objective the President sets for the Truth Commission
is the uncovering of the "truth" regarding reported corruption in the
previous administration "to ensure that the full measure of justice
[evidently upon those responsible for it] is served without fear or
favor." Ultimately, the purpose of the creation of the Truth
Commission is to ensure that the corrupt officials of the previous
administration are exposed and brought to justice.
181
The majority holds that picking on the "previous administration" and
not the others before it makes the Commission’s investigation an
"adventure in partisan hostility." To be fair, said the majority, the
search for truth must include corrupt acts not only during the previous
administration but also during the administrations before it where the
"same magnitude of controversies and anomalies" has been
reported.
The majority points out that corruption in the previous administration
and corruption in the administrations before it have no substantial
difference. And what difference they have, the majority adds, is not
relevant to the purpose of Executive Order 1, which is to uncover
corrupt acts and recommend their punishment. Superficial difference
like the difference in time in this case does not make for a valid
classification.
But time differentiation should not be so easily dismissed as
superficial. The world in which people live has two great dimensions:
the dimension of space and the dimension of time. Nobody can say
that the difference in time between two acts or events makes for a
superficial difference. Such difference is the substance of human
existence. As the Bible says:
There is an appointed time for everything, and a time for every affair
under the heavens.
A time to be born, and a time to die;
a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal;
a time to tear down, and a time to build.
A time to weep, and a time to laugh;
a time to mourn, and a time to dance;
A time to scatter stones, and a time to gather them;
a time to embrace, and a time to be far from embraces.
A time to seek, and a time to lose;
a time to keep, and a time to cast away;
A time to rend, and a time to sew;
a time to be silent and a time to speak.
A time to love, and a time to hate;
a time of war, and a time of peace.
 (Ecclesiastes 3:1-8, New American Bible)
Recognizing the irreversibility of time is indispensable to every sound
decision that people make in their lives everyday, like not combing
the hair that is no longer there. In time, parents let their married
children leave to make their own homes. Also, when a loved one
passes away, he who is left must know that he cannot bring back the
time that is gone. He is wise to move on with his life after some
period of mourning. To deny the truth that the difference in time
makes for substantial difference in human lives is to deny the idea of
transition from growth to decay, from life to death, and from relevant
to irrelevant.
Here the past presidential administrations the country has gone
through in modern history cover a period of 75 years, going back from
when President Gloria Macapagal Arroyo ended her term in 2010 to
the time President Manuel L. Quezon began his term in 1935. The
period could even go back 111 years if the administration of
President Emilio Aguinaldo from 1989 to 1901 is included. But, so as
not to complicate matters, the latter’s administration might just as well
be excluded from this discussion.
It should be remembered that the right of the State to recover
properties unlawfully acquired by public officials does not
prescribe.5 So, if the majority’s advice were to be literally adopted, the
Truth Commission’s investigation to be fair to all should go back 75
years to include the administrations of former Presidents Arroyo,
Estrada, Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay,
Quirino, Roxas, Osmena, Laurel, and Quezon.
As it happens, President P-Noy limited the Truth Commission’s
investigation to the 9 years of the previous administration. He did not
include the 66 years of the 12 other administrations before it. The
question, as already stated, is whether the distinction between the
recent past and the remote past makes for a substantial difference
that is relevant to the purpose of Executive Order 1.
That the distinction makes for a substantial difference is the first point
in this dissent.
182
1. The Right to Equal Protection
Feasibility of success. Time erodes the evidence of the past. The
likelihood of finding evidence needed for conviction diminishes with
the march of time. Witnesses, like everyone else, have short
memories. And they become scarce, working overseas, migrating,
changing addresses, or just passing away. Official or private
documents needed as evidence are easily overwhelmed by the
demand to file and keep even more documents generated by new
activities and transactions. Thus, old documents are stored away in
basements, garages, or corridors, and eventually lost track of,
misplaced, or simply destroyed, whether intentionally or not. In a
government that is notorious for throwing away or mishandling old
records, searching for a piece of document after ten years would be
uncertain, tedious, long, and costly.
When the government of President Marcos fell in 1986, the new
government acted swiftly to sequester suspected wealth, impound
documents believed to constitute evidence of wrong-doing, and
interview witnesses who could help prosecute the Marcoses and their
cronies. One would think that these actions will ensure successful
prosecution of those who committed graft and corruption in that era.
Yet, after just a decade, the prosecution has been mostly unable to
find the right documents or call the right witnesses. Today, after 24
years, the full force of government has failed to produce even one
conviction.
Clearly, it would be a waste of effort and time to scour all of 66 years
of the administrations before the last, looking for evidence that would
produce conviction. Time has blurred the chance of success. Limiting
the Truth Commission’s investigation to the 9 years of the previous
administration gives it the best chance of yielding the required proof
needed for successful action against the offenders.
Historically, there have been no known or outstanding inquiries done
by the Executive Department into corrupt acts of the past that went
beyond the term of the immediately preceding administration. It
makes sense for President P-Noy to limit the investigation to what is
practical and attainable, namely, the 9 years of the previous
administration. He strikes at what is here and near. Perchance, he
can get a conviction. Investigating corruption in the past 75 years
rather than in the nearest 9 years, under a nebulous claim of
evenhandedness, is the key to failing altogether. It has been held that
if the law presumably hits the evil where it is felt, it is not to be
overthrown because there are other instances to which it might have
been applied.6
Neutralization of Presidential bias. The Court can take judicial notice
of the fact that President P-noy openly attacked the previous
administration for its alleged corruption in the course of his election
campaign. In a sense, he has developed a bias against it.
Consequently, his creation of the Truth Commission, consisting of a
former Chief Justice, two former Associate Justices of the Supreme
Court, and two law professors serves to neutralize such bias and
ensure fairness. The President did not have to include the 66 years of
earlier administrations for investigation since he did not specifically
target them in his election campaign.
At any rate, it does not mean that when the President created the
Truth Commission, he shut the door to the investigation of corruption
committed during the 66 years before the previous one. All existing
government agencies that are charged with unearthing crimes
committed by public officials are not precluded from following up
leads and uncovering corruptions committed during the earlier years.
Those corrupt officials of the remote past have not gained immunity
by reason of Executive Order 1.
Matching task to size. The Truth Commission is a collegial body of
just five members with no budget or permanent staffs of its own. It
simply would not have the time and resources for examining
hundreds if not thousands of anomalous government contracts that
may have been entered into in the past 75 years up to the time of
President Quezon. You cannot order five men to pull a train that a
thousand men cannot move.
Good housekeeping. Directing the investigation of reported corrupt
acts committed during the previous administration is, as the Solicitor
General pointed out, consistent with good housekeeping. For
example, a new treasurer would be prudent to ensure that the former
treasurer he succeeds has balanced his accounts and submitted
himself to a closing audit even after the new treasurer has taken over.
This prevents the latter having to unfairly assume the liabilities of his
183
predecessor for shortages in the cash box. Of course, the new
treasurer is not required to look farther into the accounts of the earlier
treasurers.
In like manner, it is reasonable for President P-Noy to cause the
investigation of the anomalies reportedly committed during the
previous administration to which he succeeded. He has to locate
government funds that have not been accounted for. He has to
stanch the bleeding that the government could be suffering even now
by reason of anomalous contracts that are still on-going. Such is a
part of good housekeeping. It does not violate the equal protection
clause by its non-inclusion of the earlier administrations in its review.
The latter’s dealings is remotely relevant to good housekeeping that
is intended to manage a smooth transition from one administration to
the next.
2. The President’s Judgment
as against the Court’s
That is the first point. The second point is that the Court needs to
stand within the limits of its power to review the actions of a co-equal
branch, like those of the President, within the sphere of its
constitutional authority. Since, as the majority concedes, the creation
of the Truth Commission is within the constitutional powers of
President P-Noy to undertake, then to him, not to the Court, belongs
the discretion to define the limits of the investigation as he deems fit.
The Court cannot pit its judgment against the judgment of the
President in such matter.
And when can the Supreme Court interfere with the exercise of that
discretion? The answer is, as provided in Section 1, Article VIII of the
1987 Constitution, only when the President gravely abuses his
exercise of such discretion. This means that, in restricting the Truth
Commission’s investigation only to corruptions committed during the
previous administration, he acted capriciously and whimsically or in
an arbitrary or despotic manner.7
To act capriciously and whimsically is to act freakishly, abruptly, or
erratically, like laughing one moment and crying the next without
apparent reason. Does this characterize the President’s action in this
case, considering that he merely acted to set a feasible target, 2
Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
neutralize political bias, assign the Commission a task suitable to its
limited capacity, and observe correct housekeeping procedures? Did 3
2 Cooley, Constitutional Limitations, 824-825.
he act arbitrarily in the manner of little children changing the rules of
the game in the middle of the play or despotically in the manner of a 4
People v. Cayat, 68 Phil. 12 (1939), citing leading American
dictator? Unless he did, the Court must rein in its horses. It cannot cases.
itself exceed the limits of its power of review under the Constitution.
5
1987 Constitution of the Philippines, Article 11, Section 15.
Besides, the Court is not better placed than the President to make the
decision he made. Unlike the President, the Court does not have the 6
Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.
full resources of the government available to it. It does not have all
the information and data it would need for deciding what objective is
fair and viable for a five-member body like the Truth Commission.
7
Perez v. Court of Appeals, G.R. No. 162580, January 27,
Only when the President’s actions are plainly irrational and arbitrary 2006, 480 SCRA 411, 416.
even to the man on the street can the Court step in from Mount
Olympus and stop such actions.

Notably, none of those who have been reported as involved in

corruption in the previous administration have come forward to
complain that the creation of the Truth Commission has violated their
rights to equal protection. If they committed no wrong, and I believe
many would fall in this category, they would probably have an interest
in pushing for the convening of the Commission. On the other hand, if
they believe that the investigation unfairly threatens their liberties,
they can, if subpoenaed, to testify invoke their right to silence. As
stated in the majority opinion, the findings of the Commission would
not bind them. Such findings would not diminish their right to defend
themselves at the appropriate time and forum.

For the above reasons, I join the main dissent of Justice Antonio T.
Carpio.

ROBERTO A. ABAD
Associate Justice

Footnotes

1
Dated July 30, 2010.

184
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 159796 July 17, 2007
ROMEO P. GEROCHI, KATULONG NG BAYAN (KB) and
ENVIRONMENTALIST CONSUMERS NETWORK, INC.
(ECN), Petitioners,
vs.
DEPARTMENT OF ENERGY (DOE), ENERGY REGULATORY
COMMISSION (ERC), NATIONAL POWER CORPORATION (NPC),
POWER SECTOR ASSETS AND LIABILITIES MANAGEMENT
GROUP (PSALM Corp.), STRATEGIC POWER UTILITIES GROUP
(SPUG), and PANAY ELECTRIC COMPANY INC.
(PECO),Respondents.
DECISION
NACHURA, J.:
Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and
Environmentalist Consumers Network, Inc. (ECN) (petitioners), come
before this Court in this original action praying that Section 34 of
Republic Act (RA) 9136, otherwise known as the "Electric Power
Industry Reform Act of 2001" (EPIRA), imposing the Universal
Charge,1and Rule 18 of the Rules and Regulations (IRR)2 which
seeks to implement the said imposition, be declared unconstitutional.
Petitioners also pray that the Universal Charge imposed upon the
consumers be refunded and that a preliminary injunction and/or
temporary restraining order (TRO) be issued directing the
respondents to refrain from implementing, charging, and collecting
the said charge.3 The assailed provision of law reads:
SECTION 34. Universal Charge. — Within one (1) year from the
effectivity of this Act, a universal charge to be determined, fixed and
approved by the ERC, shall be imposed on all electricity end-users
for the following purposes:
185
(a) Payment for the stranded debts4 in excess of the amount
assumed by the National Government and stranded contract
costs of NPC5 and as well as qualified stranded contract costs
of distribution utilities resulting from the restructuring of the
industry;
(b) Missionary electrification;6
(c) The equalization of the taxes and royalties applied to
indigenous or renewable sources of energy vis-à-vis imported
energy fuels;
(d) An environmental charge equivalent to one-fourth of one
centavo per kilowatt-hour (₱0.0025/kWh), which shall accrue
to an environmental fund to be used solely for watershed
rehabilitation and management. Said fund shall be managed
by NPC under existing arrangements; and
(e) A charge to account for all forms of cross-subsidies for a
period not exceeding three (3) years.
The universal charge shall be a non-bypassable charge which shall
be passed on and collected from all end-users on a monthly basis by
the distribution utilities. Collections by the distribution utilities and the
TRANSCO in any given month shall be remitted to the PSALM Corp.
on or before the fifteenth (15th) of the succeeding month, net of any
amount due to the distribution utility. Any end-user or self-generating
entity not connected to a distribution utility shall remit its
corresponding universal charge directly to the TRANSCO. The
PSALM Corp., as administrator of the fund, shall create a Special
Trust Fund which shall be disbursed only for the purposes specified
herein in an open and transparent manner. All amount collected for
the universal charge shall be distributed to the respective
beneficiaries within a reasonable period to be provided by the ERC.
The Facts
Congress enacted the EPIRA on June 8, 2001; on June 26, 2001, it
took effect.7
On April 5, 2002, respondent National Power Corporation-Strategic
Power Utilities Group8 (NPC-SPUG) filed with respondent Energy
Regulatory Commission (ERC) a petition for the availment from the
Universal Charge of its share for Missionary Electrification, docketed
as ERC Case No. 2002-165.9
On May 7, 2002, NPC filed another petition with ERC, docketed as
ERC Case No. 2002-194, praying that the proposed share from the
Universal Charge for the Environmental charge of ₱0.0025 per
kilowatt-hour (/kWh), or a total of ₱119,488,847.59, be approved for
withdrawal from the Special Trust Fund (STF) managed by
respondent Power Sector Assets and
Liabilities Management Group (PSALM)10 for the rehabilitation and
management of watershed areas.11
On December 20, 2002, the ERC issued an Order12 in ERC Case No.
2002-165 provisionally approving the computed amount of
₱0.0168/kWh as the share of the NPC-SPUG from the Universal
Charge for Missionary Electrification and authorizing the National
Transmission Corporation (TRANSCO) and Distribution Utilities to
collect the same from its end-users on a monthly basis.
On June 26, 2003, the ERC rendered its Decision13 (for ERC Case
No. 2002-165) modifying its Order of December 20, 2002, thus:
WHEREFORE, the foregoing premises considered, the provisional
authority granted to petitioner National Power Corporation-Strategic
Power Utilities Group (NPC-SPUG) in the Order dated December 20,
2002 is hereby modified to the effect that an additional amount of
₱0.0205 per kilowatt-hour should be added to the ₱0.0168 per
kilowatt-hour provisionally authorized by the Commission in the said
Order. Accordingly, a total amount of ₱0.0373 per kilowatt-hour is
hereby APPROVED for withdrawal from the Special Trust Fund
managed by PSALM as its share from the Universal Charge for
Missionary Electrification (UC-ME) effective on the following billing
cycles:
(a) June 26-July 25, 2003 for National Transmission
Corporation (TRANSCO); and
186
(b) July 2003 for Distribution Utilities (Dus).
Relative thereto, TRANSCO and Dus are directed to collect the UC-
ME in the amount of ₱0.0373 per kilowatt-hour and remit the same to
PSALM on or before the 15th day of the succeeding month.
In the meantime, NPC-SPUG is directed to submit, not later than April
30, 2004, a detailed report to include Audited Financial Statements
and physical status (percentage of completion) of the projects using
the prescribed format.1avvphi1
Let copies of this Order be furnished petitioner NPC-SPUG and all
distribution utilities (Dus).
SO ORDERED.
On August 13, 2003, NPC-SPUG filed a Motion for Reconsideration
asking the ERC, among others,14 to set aside the above-mentioned
Decision, which the ERC granted in its Order dated October 7, 2003,
disposing:
WHEREFORE, the foregoing premises considered, the "Motion for
Reconsideration" filed by petitioner National Power Corporation-Small
Power Utilities Group (NPC-SPUG) is hereby GRANTED.
Accordingly, the Decision dated June 26, 2003 is hereby modified
accordingly.
Relative thereto, NPC-SPUG is directed to submit a quarterly report
on the following:
1. Projects for CY 2002 undertaken;
2. Location
3. Actual amount utilized to complete the project;
4. Period of completion;
5. Start of Operation; and
 6. Explanation of the reallocation of UC-ME funds, if any.
SO ORDERED.15
Meanwhile, on April 2, 2003, ERC decided ERC Case No. 2002-194,
authorizing the NPC to draw up to ₱70,000,000.00 from PSALM for
its 2003 Watershed Rehabilitation Budget subject to the availability of
funds for the Environmental Fund component of the Universal
Charge.16
On the basis of the said ERC decisions, respondent Panay Electric
Company, Inc. (PECO) charged petitioner Romeo P. Gerochi and all
other end-users with the Universal Charge as reflected in their
respective electric bills starting from the month of July 2003.17
Hence, this original action.
Petitioners submit that the assailed provision of law and its IRR which
sought to implement the same are unconstitutional on the following
grounds:
1) The universal charge provided for under Sec. 34 of the
EPIRA and sought to be implemented under Sec. 2, Rule 18
of the IRR of the said law is a tax which is to be collected from
all electric end-users and self-generating entities. The power
to tax is strictly a legislative function and as such, the
delegation of said power to any executive or administrative
agency like the ERC is unconstitutional, giving the same
unlimited authority. The assailed provision clearly provides
that the Universal Charge is to be determined, fixed and
approved by the ERC, hence leaving to the latter complete
discretionary legislative authority.
2) The ERC is also empowered to approve and determine
where the funds collected should be used.
3) The imposition of the Universal Charge on all end-users is
oppressive and confiscatory and amounts to taxation without
representation as the consumers were not given a chance to
be heard and represented.18
187
Petitioners contend that the Universal Charge has the characteristics
of a tax and is collected to fund the operations of the NPC. They
argue that the cases19 invoked by the respondents clearly show the
regulatory purpose of the charges imposed therein, which is not so in
the case at bench. In said cases, the respective funds20 were created
in order to balance and stabilize the prices of oil and sugar, and to act
as buffer to counteract the changes and adjustments in prices, peso
devaluation, and other variables which cannot be adequately and
timely monitored by the legislature. Thus, there was a need to
delegate powers to administrative bodies.21 Petitioners posit that the
Universal Charge is imposed not for a similar purpose.
On the other hand, respondent PSALM through the Office of the
Government Corporate Counsel (OGCC) contends that unlike a tax
which is imposed to provide income for public purposes, such as
support of the government, administration of the law, or payment of
public expenses, the assailed Universal Charge is levied for a specific
regulatory purpose, which is to ensure the viability of the country's
electric power industry. Thus, it is exacted by the State in the
exercise of its inherent police power. On this premise, PSALM
submits that there is no undue delegation of legislative power to the
ERC since the latter merely exercises a limited authority or discretion
as to the execution and implementation of the provisions of the
EPIRA.22
Respondents Department of Energy (DOE), ERC, and NPC, through
the Office of the Solicitor General (OSG), share the same view that
the Universal Charge is not a tax because it is levied for a specific
regulatory purpose, which is to ensure the viability of the country's
electric power industry, and is, therefore, an exaction in the exercise
of the State's police power. Respondents further contend that said
Universal Charge does not possess the essential characteristics of a
tax, that its imposition would redound to the benefit of the electric
power industry and not to the public, and that its rate is uniformly
levied on electricity end-users, unlike a tax which is imposed based
on the individual taxpayer's ability to pay. Moreover, respondents
deny that there is undue delegation of legislative power to the ERC
since the EPIRA sets forth sufficient determinable standards which
would guide the ERC in the exercise of the powers granted to it.
Lastly, respondents argue that the imposition of the Universal Charge
is not oppressive and confiscatory since it is an exercise of the police
power of the State and it complies with the requirements of due
process.23
On its part, respondent PECO argues that it is duty-bound to collect
and remit the amount pertaining to the Missionary Electrification and
Environmental Fund components of the Universal Charge, pursuant
to Sec. 34 of the EPIRA and the Decisions in ERC Case Nos. 2002-
194 and 2002-165. Otherwise, PECO could be held liable under Sec.
4624 of the EPIRA, which imposes fines and penalties for any violation
of its provisions or its IRR.25
The Issues
The ultimate issues in the case at bar are:
1) Whether or not, the Universal Charge imposed under Sec.
34 of the EPIRA is a tax; and
2) Whether or not there is undue delegation of legislative
power to tax on the part of the ERC.26
Before we discuss the issues, the Court shall first deal with an
obvious procedural lapse.
Petitioners filed before us an original action particularly denominated
as a Complaint assailing the constitutionality of Sec. 34 of the EPIRA
imposing the Universal Charge and Rule 18 of the EPIRA's IRR. No
doubt, petitioners havelocus standi. They impugn the constitutionality
of Sec. 34 of the EPIRA because they sustained a direct injury as a
result of the imposition of the Universal Charge as reflected in their
electric bills.
However, petitioners violated the doctrine of hierarchy of courts when
they filed this "Complaint" directly with us. Furthermore, the
Complaint is bereft of any allegation of grave abuse of discretion on
the part of the ERC or any of the public respondents, in order for the
Court to consider it as a petition for certiorari or prohibition.
Article VIII, Section 5(1) and (2) of the 1987
Constitution27 categorically provides that:
188
SECTION 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
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.
But this Court's jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, and habeas corpus, while
concurrent with that of the regional trial courts and the Court of
Appeals, does not give litigants unrestrained freedom of choice of
forum from which to seek such relief.28 It has long been established
that this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, or where
exceptional and compelling circumstances justify availment of a
remedy within and call for the exercise of our primary
jurisdiction.29 This circumstance alone warrants the outright dismissal
of the present action.
This procedural infirmity notwithstanding, we opt to resolve the
constitutional issue raised herein. We are aware that if the
constitutionality of Sec. 34 of the EPIRA is not resolved now, the
issue will certainly resurface in the near future, resulting in a repeat of
this litigation, and probably involving the same parties. In the public
interest and to avoid unnecessary delay, this Court renders its ruling
now.
The instant complaint is bereft of merit.
The First Issue
 To resolve the first issue, it is necessary to distinguish the State’s
power of taxation from the police power.
The power to tax is an incident of sovereignty and is unlimited in its
range, acknowledging in its very nature no limits, so that security
against its abuse is to be found only in the responsibility of the
legislature which imposes the tax on the constituency that is to pay
it.30 It is based on the principle that taxes are the lifeblood of the
government, and their prompt and certain availability is an imperious
need.31 Thus, the theory behind the exercise of the power to tax
emanates from necessity; without taxes, government cannot fulfill its
mandate of promoting the general welfare and well-being of the
people.32
On the other hand, police power is the power of the state to promote
public welfare by restraining and regulating the use of liberty and
property.33 It is the most pervasive, the least limitable, and the most
demanding of the three fundamental powers of the State. The
justification is found in the Latin maxims salus populi est suprema
lex (the welfare of the people is the supreme law) and sic utere tuo ut
alienum non laedas (so use your property as not to injure the property
of others). As an inherent attribute of sovereignty which virtually
extends to all public needs, police power grants a wide panoply of
instruments through which the State, as parens patriae, gives effect
to a host of its regulatory powers.34 We have held that the power to
"regulate" means the power to protect, foster, promote, preserve, and
control, with due regard for the interests, first and foremost, of the
public, then of the utility and of its patrons.35
The conservative and pivotal distinction between these two powers
rests in the purpose for which the charge is made. If generation of
revenue is the primary purpose and regulation is merely incidental,
the imposition is a tax; but if regulation is the primary purpose, the
fact that revenue is incidentally raised does not make the imposition a
tax.36
In exacting the assailed Universal Charge through Sec. 34 of the
EPIRA, the State's police power, particularly its regulatory dimension,
is invoked. Such can be deduced from Sec. 34 which enumerates the
purposes for which the Universal Charge is imposed37 and which can
189
be amply discerned as regulatory in character. The EPIRA resonates
such regulatory purposes, thus:
SECTION 2. Declaration of Policy. — It is hereby declared the policy
of the State:
(a) To ensure and accelerate the total electrification of the
country;
(b) To ensure the quality, reliability, security and affordability
of the supply of electric power;
(c) To ensure transparent and reasonable prices of electricity
in a regime of free and fair competition and full public
accountability to achieve greater operational and economic
efficiency and enhance the competitiveness of Philippine
products in the global market;
(d) To enhance the inflow of private capital and broaden the
ownership base of the power generation, transmission and
distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public
and private sector entities in the process of restructuring the
electric power industry;
(f) To protect the public interest as it is affected by the rates
and services of electric utilities and other providers of electric
power;
(g) To assure socially and environmentally compatible energy
sources and infrastructure;
(h) To promote the utilization of indigenous and new and
renewable energy resources in power generation in order to
reduce dependence on imported energy;
(i) To provide for an orderly and transparent privatization of
the assets and liabilities of the National Power Corporation
(NPC);
 (j) To establish a strong and purely independent regulatory
body and system to ensure consumer protection and enhance
the competitive operation of the electricity market; and
(k) To encourage the efficient use of energy and other
modalities of demand side management.
From the aforementioned purposes, it can be gleaned that the
assailed Universal Charge is not a tax, but an exaction in the exercise
of the State's police power. Public welfare is surely promoted.
Moreover, it is a well-established doctrine that the taxing power may
be used as an implement of police power.38 In Valmonte v. Energy
Regulatory Board, et al.39 and in Gaston v. Republic Planters
Bank,40 this Court held that the Oil Price Stabilization Fund (OPSF)
and the Sugar Stabilization Fund (SSF) were exactions made in the
exercise of the police power. The doctrine was reiterated in Osmeña
v. Orbos41 with respect to the OPSF. Thus, we disagree with
petitioners that the instant case is different from the aforementioned
cases. With the Universal Charge, a Special Trust Fund (STF) is also
created under the administration of PSALM.42 The STF has some
notable characteristics similar to the OPSF and the SSF, viz.:
1) In the implementation of stranded cost recovery, the ERC
shall conduct a review to determine whether there is under-
recovery or over recovery and adjust (true-up) the level of the
stranded cost recovery charge. In case of an over-recovery,
the ERC shall ensure that any excess amount shall be
remitted to the STF. A separate account shall be created for
these amounts which shall be held in trust for any future
claims of distribution utilities for stranded cost recovery. At the
end of the stranded cost recovery period, any remaining
amount in this account shall be used to reduce the electricity
rates to the end-users.43
2) With respect to the assailed Universal Charge, if the total
amount collected for the same is greater than the actual
availments against it, the PSALM shall retain the balance
within the STF to pay for periods where a shortfall occurs.44
190
3) Upon expiration of the term of PSALM, the administration
of the STF shall be transferred to the DOF or any of the DOF
attached agencies as designated by the DOF Secretary.45
The OSG is in point when it asseverates:
Evidently, the establishment and maintenance of the Special Trust
Fund, under the last paragraph of Section 34, R.A. No. 9136, is well
within the pervasive and non-waivable power and responsibility of the
government to secure the physical and economic survival and well-
being of the community, that comprehensive sovereign authority we
designate as the police power of the State.46
This feature of the Universal Charge further boosts the position that
the same is an exaction imposed primarily in pursuit of the State's
police objectives. The STF reasonably serves and assures the
attainment and perpetuity of the purposes for which the Universal
Charge is imposed, i.e., to ensure the viability of the country's electric
power industry.
The Second Issue
The principle of separation of powers ordains that each of the three
branches of government has exclusive cognizance of and is supreme
in matters falling within its own constitutionally allocated sphere. A
logical corollary to the doctrine of separation of powers is the principle
of non-delegation of powers, as expressed in the Latin
maxim potestas delegata non delegari potest (what has been
delegated cannot be delegated). This is based on the ethical principle
that such delegated power constitutes not only a right but a duty to be
performed by the delegate through the instrumentality of his own
judgment and not through the intervening mind of another. 47
In the face of the increasing complexity of modern life, delegation of
legislative power to various specialized administrative agencies is
allowed as an exception to this principle.48 Given the volume and
variety of interactions in today's society, it is doubtful if the legislature
can promulgate laws that will deal adequately with and respond
promptly to the minutiae of everyday life. Hence, the need to delegate
to administrative bodies - the principal agencies tasked to execute
laws in their specialized fields - the authority to promulgate rules and
regulations to implement a given statute and effectuate its policies. All
that is required for the valid exercise of this power of subordinate
legislation is that the regulation be germane to the objects and
purposes of the law and that the regulation be not in contradiction to,
but in conformity with, the standards prescribed by the law. These
requirements are denominated as the completeness test and the
sufficient standard test.
Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches
the delegate, the only thing he will have to do is to enforce it. The
second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate's authority and prevent the
delegation from running riot.49
The Court finds that the EPIRA, read and appreciated in its entirety,
in relation to Sec. 34 thereof, is complete in all its essential terms and
conditions, and that it contains sufficient standards.
Although Sec. 34 of the EPIRA merely provides that "within one (1)
year from the effectivity thereof, a Universal Charge to be
determined, fixed and approved by the ERC, shall be imposed on all
electricity end-users," and therefore, does not state the specific
amount to be paid as Universal Charge, the amount nevertheless is
made certain by the legislative parameters provided in the law itself.
For one, Sec. 43(b)(ii) of the EPIRA provides:
SECTION 43. Functions of the ERC. — The ERC shall promote
competition, encourage market development, ensure customer
choice and penalize abuse of market power in the restructured
electricity industry. In appropriate cases, the ERC is authorized to
issue cease and desist order after due notice and hearing. Towards
this end, it shall be responsible for the following key functions in the
restructured industry:
xxxx
191
(b) Within six (6) months from the effectivity of this Act, promulgate
and enforce, in accordance with law, a National Grid Code and a
Distribution Code which shall include, but not limited to the following:
xxxx
(ii) Financial capability standards for the generating companies, the
TRANSCO, distribution utilities and suppliers: Provided, That in the
formulation of the financial capability standards, the nature and
function of the entity shall be considered: Provided, further, That such
standards are set to ensure that the electric power industry
participants meet the minimum financial standards to protect the
public interest. Determine, fix, and approve, after due notice and
public hearings the universal charge, to be imposed on all electricity
end-users pursuant to Section 34 hereof;
Moreover, contrary to the petitioners’ contention, the ERC does not
enjoy a wide latitude of discretion in the determination of the
Universal Charge. Sec. 51(d) and (e) of the EPIRA50 clearly provides:
SECTION 51. Powers. — The PSALM Corp. shall, in the
performance of its functions and for the attainment of its objective,
have the following powers:
xxxx
(d) To calculate the amount of the stranded debts and
stranded contract costs of NPC which shall form the basis
for ERC in the determination of the universal charge;
(e) To liquidate the NPC stranded contract costs, utilizing the
proceeds from sales and other property contributed to it,
including the proceeds from the universal charge.
Thus, the law is complete and passes the first test for valid delegation
of legislative power.
As to the second test, this Court had, in the past, accepted as
sufficient standards the following: "interest of law and
order;"51 "adequate and efficient instruction;"52 "public
interest;"53 "justice and equity;"54 "public convenience and
welfare;"55 "simplicity, economy and efficiency;"56 "standardization and
regulation of medical education;"57 and "fair and equitable
employment practices."58 Provisions of the EPIRA such as, among
others, "to ensure the total electrification of the country and the
quality, reliability, security and affordability of the supply of electric
power"59 and "watershed rehabilitation and management"60 meet the
requirements for valid delegation, as they provide the limitations on
the ERC’s power to formulate the IRR. These are sufficient
standards.
It may be noted that this is not the first time that the ERC's conferred
powers were challenged. In Freedom from Debt Coalition v. Energy
Regulatory Commission,61 the Court had occasion to say:
In determining the extent of powers possessed by the ERC, the
provisions of the EPIRA must not be read in separate parts. Rather,
the law must be read in its entirety, because a statute is passed as a
whole, and is animated by one general purpose and intent. Its
meaning cannot to be extracted from any single part thereof but from
a general consideration of the statute as a whole. Considering the
intent of Congress in enacting the EPIRA and reading the statute in
its entirety, it is plain to see that the law has expanded the jurisdiction
of the regulatory body, the ERC in this case, to enable the latter to
implement the reforms sought to be accomplished by the EPIRA.
When the legislators decided to broaden the jurisdiction of the ERC,
they did not intend to abolish or reduce the powers already conferred
upon ERC's predecessors. To sustain the view that the ERC
possesses only the powers and functions listed under Section 43 of
the EPIRA is to frustrate the objectives of the law.
In his Concurring and Dissenting Opinion62 in the same case, then
Associate Justice, now Chief Justice, Reynato S. Puno described the
immensity of police power in relation to the delegation of powers to
the ERC and its regulatory functions over electric power as a vital
public utility, to wit:
Over the years, however, the range of police power was no longer
limited to the preservation of public health, safety and morals, which
used to be the primary social interests in earlier times. Police power
now requires the State to "assume an affirmative duty to eliminate the
192
excesses and injustices that are the concomitants of an unrestrained
industrial economy." Police power is now exerted "to further the public
welfare — a concept as vast as the good of society itself." Hence,
"police power is but another name for the governmental authority to
further the welfare of society that is the basic end of all
government." When police power is delegated to administrative
bodies with regulatory functions, its exercise should be given a wide
latitude. Police power takes on an even broader dimension in
developing countries such as ours, where the State must take a more
active role in balancing the many conflicting interests in society. The
Questioned Order was issued by the ERC, acting as an agent of the
State in the exercise of police power. We should have exceptionally
good grounds to curtail its exercise. This approach is more
compelling in the field of rate-regulation of electric power
rates. Electric power generation and distribution is a traditional
instrument of economic growth that affects not only a few but the
entire nation. It is an important factor in encouraging investment and
promoting business. The engines of progress may come to a
screeching halt if the delivery of electric power is impaired. Billions of
pesos would be lost as a result of power outages or unreliable electric
power services. The State thru the ERC should be able to exercise its
police power with great flexibility, when the need arises.
This was reiterated in National Association of Electricity Consumers
for Reforms v. Energy Regulatory Commission63 where the Court held
that the ERC, as regulator, should have sufficient power to respond in
real time to changes wrought by multifarious factors affecting public
utilities.
From the foregoing disquisitions, we therefore hold that there is no
undue delegation of legislative power to the ERC.
Petitioners failed to pursue in their Memorandum the contention in the
Complaint that the imposition of the Universal Charge on all end-
users is oppressive and confiscatory, and amounts to taxation without
representation. Hence, such contention is deemed waived or
abandoned per Resolution64 of August 3, 2004.65 Moreover, the
determination of whether or not a tax is excessive, oppressive or
confiscatory is an issue which essentially involves questions of fact,
and thus, this Court is precluded from reviewing the same.66
As a penultimate statement, it may be well to recall what this Court WHEREFORE, the instant case is hereby DISMISSED for lack of
said of EPIRA: merit.

One of the landmark pieces of legislation enacted by Congress in SO ORDERED.

recent years is the EPIRA. It established a new policy, legal structure
and regulatory framework for the electric power industry. The new ANTONIO EDUARDO B. NACHURA
thrust is to tap private capital for the expansion and improvement of Associate Justice
the industry as the large government debt and the highly capital-
intensive character of the industry itself have long been WE CONCUR:
acknowledged as the critical constraints to the program. To attract
private investment, largely foreign, the jaded structure of the industry
REYNATO S. PUNO
had to be addressed. While the generation and transmission sectors
Chief Justice
were centralized and monopolistic, the distribution side was
fragmented with over 130 utilities, mostly small and uneconomic. The
pervasive flaws have caused a low utilization of existing generation
capacity; extremely high and uncompetitive power rates; poor quality LEONARDO A. CONSUELO YNARES-
of service to consumers; dismal to forgettable performance of the QUISUMBING SANTIAGO
government power sector; high system losses; and an inability to Associate Justice Associate Justice
develop a clear strategy for overcoming these shortcomings.
ANGELINA SANDOVAL-
Thus, the EPIRA provides a framework for the restructuring of the ANTONIO T. CARPIO
GUTIERREZ
industry, including the privatization of the assets of the National Associate Justice
Associate Justice
Power Corporation (NPC), the transition to a competitive structure,
and the delineation of the roles of various government agencies and
the private entities. The law ordains the division of the industry into MA. ALICIA AUSTRIA-
RENATO C. CORONA
four (4) distinct sectors, namely: generation, transmission, distribution MARTINEZ
Associate Justice
and supply. Associate Justice

Corollarily, the NPC generating plants have to privatized and its

transmission business spun off and privatized thereafter.67 CONCHITA CARPIO
ADOLFO S. AZCUNA
MORALES
Associate Justice
Associate Justice
Finally, every law has in its favor the presumption of constitutionality,
and to justify its nullification, there must be a clear and unequivocal
breach of the Constitution and not one that is doubtful, speculative, or MINITA V. CHICO-
argumentative.68Indubitably, petitioners failed to overcome this DANTE O. TINGA
NAZARIO
presumption in favor of the EPIRA. We find no clear violation of the Associate Justice
Associate Justice
Constitution which would warrant a pronouncement that Sec. 34 of
the EPIRA and Rule 18 of its IRR are unconstitutional and void.

193
 have not been liquidated by the proceeds from the sales and
PRESBITERO J. privatization of NPC assets.
CANCIO C. GARCIA
VELASCO, JR.
Associate Justice
Associate Justice 5
Sec. 4 [uu] of the EPIRA also provides that Stranded
contract costs of NPC or distribution utility refer to the excess
of the contracted cost of electricity under eligible contracts
CERTIFICATION over the actual selling price of the contracted energy output of
such contracts in the market. Such contracts shall have been
Pursuant to Section 13, Article VIII of the Constitution, I certify that approved by the ERB as of December 31, 2000.
the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion 6
Rule 4 (ddd) of the IRR provides that Missionary
of the Court. Electrification refers to the provision of basic electricity service
in Unviable Areas with the ultimate aim of bringing the
REYNATO S. PUNO operations in these areas to viability levels.
Chief Justice
7
Manila Electric Company, Inc. v. Lualhati, G.R. Nos. 166769
and 166818, December 6, 2006.

Footnotes
1
Sec. 4 (ddd) of the EPIRA provides that the Universal
Charge refers to the charge, if any, imposed for the recovery
of the stranded cost and other purposes pursuant to Section
34 hereof.
2
Rules and Regulations to Implement Republic Act No. 9136,
entitled "Electric Power Industry Reform Act of 2001, (IRR)
approved on February 27, 2002, particularly Rule 4 (rrrr)
provides that the "Universal Charge" refers to the charge, if
any, imposed for the recovery of the Stranded Debts,
Stranded Contract Costs of NPC, and Stranded Contract
Costs of Eligible Contracts of Distribution Utilities and other
purposes pursuant to Section 34 of the EPIRA.
8
IRR, Rule 4 (bbbb) states that Small Power Utilities Group or
SPUG refers to the functional unit of NPC created to pursue
Missionary Electrification function.
9
ERC Record for ERC Case No. 2002-165, pp. 1-7.
10
PSALM is a government-owned and controlled corporation
created under Sec. 49 of the EPIRA, which shall take
ownership of all existing NPC generation assets, liabilities,
IPP contracts, real estate and all other disposable assets. All
outstanding obligations of the NPC arising from loans,
issuances of bonds, securities and other instruments of
indebtedness shall be transferred to and assumed by the
PSALM.
11
ERC Record for ERC Case No. 2002-194, pp. 1-5.

3
Particularly denominated as Complaint dated September 15, 12
Supra note 9, at 110-122.
2003; rollo, pp. 3-15.
13
Id. at 215-224.
4
Sec. 4 [vv] of the EPIRA provides that Stranded Debts of
NPC refer to any unpaid financial obligations of NPC which

194
14
NPC-SPUG's Motion for Reconsideration dated August 13, Any person who is found guilty of any of the prohibited
2003 also prayed that it be allowed (1) to have flexibility in the acts pursuant to Section 45 hereof shall suffer the
utilization of UC-ME considering its mandate to implement the penalty of prision mayor and a fine ranging from Ten
MEDP responsive to the needs and constraints of missionary thousand pesos (₱10,000.00) to Ten million pesos
electrification; (2) to authorize it to re-prioritize its CAPEX and (₱10,000.000.00), or both, at the discretion of the
its OPEX to the extent possible, for CY 2003; and (3) to give it court.
the flexibility to reallocate available UC-ME funds among the
revised priority activities/projects for CY 2003, Id. at 225-236. The members of the Board of Directors of the juridical
companies participating in or covered in the
15
Id. at 237-239. generation companies, the distribution utilities, the
TRANSCO or its concessionaire or supplier who
16
Supra note 11, at 110-122. violate the provisions of this Act may be fined by an
amount not exceeding double the amount of damages
17
Rollo, p. 8. caused by the offender or by imprisonment of one (1)
year or two (2) years or both at the discretion of the
court. This rule shall apply to the members of the
18
Supra note 3.
Board who knowingly or by neglect allows the
commission or omission under the law.
19
Osmeña v. Orbos, G.R. No. 99886, March 31, 1993, 220
SCRA 703; Valmonte v. Energy Regulatory Board, G.R. Nos.
If the offender is a government official or employee,
L-79601-03, June 23, 1988, 162 SCRA 521; and Gaston v.
he shall, in addition, be dismissed from the
Republic Planters Bank, No. L-77194, March 15, 1988, 158
government service with prejudice to reinstatement
SCRA 626.
and with perpetual or temporary disqualification from
holding any elective or appointive office.
20
These funds are the Oil Price Stabilization Fund (OPSF)
and Sugar Stabilization Fund (SSF).
If the offender is an alien, he may, in addition to the
penalties prescribed, be deported without further
21
Petitioners' Memorandum dated October 6, 2004; rollo, pp. proceedings after service of sentence.
123-138.
Any case which involves question of fact shall be
22
PSALM's Memorandum dated December 8, 2004; id. at appealable to the Court of Appeals and those which
154-167. involve question of law shall be directly appealable to
the Supreme Court.
23
OSG's Memorandum dated January 4, 2005; id. at 168-187.
The administrative sanction that may be imposed by
24
SECTION 46. Fines and Penalties. — The fines and the ERC shall be without prejudice to the filing of a
penalties that shall be imposed by the ERC for any violation criminal action, if warranted.
of or non-compliance with this Act or the IRR shall range from
a minimum of Fifty thousand pesos (₱50,000.00) to a To ensure compliance with this Act, the penalty of
maximum of Fifty million pesos (₱50,000,000.00). prision correccional or a fine ranging from Five

195
 thousand pesos (₱5,000.00) to Five million pesos
(₱5,000,000.00), or both, at the discretion of the court,
shall be imposed on any person, including but not
limited to the president, member of the Board, Chief
Executive Officer or Chief Operating Officer of the
corporation, partnership, or any other entity involved,
found guilty of violating or refusing to comply with any
provision of this Act or its IRR, other than those
provided herein.
Any party to an administrative proceeding may, at any
time, make an offer to the ERC, conditionally or
otherwise, for a consented decree, voluntary
compliance or desistance and other settlement of the
case. The offer and any or all of the ultimate facts
upon which the offer is based shall be considered for
settlement purposes only and shall not be used as
evidence against any party for any other purpose and
shall not constitute an admission by the party making
the offer of any violation of the laws, rules,
regulations, orders and resolutions of the ERC, nor as
a waiver to file any warranted criminal actions.
In addition, Congress may, upon recommendation of
the DOE and/or ERC, revoke such franchise or
privilege granted to the party who violated the
provisions of this Act.
25
PECO's Memorandum dated April 18, 2005; rollo, pp. 205-
210.
26
Supra note 21, at 125.
27
Emphasis supplied.
28
Francisco, Jr. v. Fernando, G.R. No. 166501, November 16,
2006, citing People v. Cuaresma, 172 SCRA 415, 423-424
(1989).
196
29
Lacson Hermanas, Inc. v. Heirs of Cenon Ignacio, G.R. No.
165973, June 29, 2005, 462 SCRA 290, 294 and Santiago v.
Vasquez, G.R. Nos. 99289-90, January 27, 1993, 217 SCRA
633, 652.
Mactan Cebu International Airport Authority v. Marcos, 330
30
Phil. 392, 404 (1996).
31
Proton Pilipinas Corporation v. Republic of the Philippines,
G.R. No. 165027, October 16, 2006, citing Province of Tarlac
v. Alcantara, 216 SCRA 790, 798 (1992).
National Power Corporation v. City of Cabanatuan, 449
32
Phil. 233, 248 (2003).
33
Didipio Earth-Savers' Multi-Purpose Association, Inc.
(DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485
SCRA 586, 604, citing U.S. v. Torribio, 15 Phil. 85, 93 (1910)
and Rubi v. The Provincial Board of Mindoro, 39 Phil. 660,
708 (1919).
JMM Promotion and Management, Inc. v. Court of Appeals,
34
G.R. No. 120095, August 5, 1996, 260 SCRA 319, 324.
Philippine Association of Service Exporters, Inc. v. Hon.
35
Ruben D. Torres, G.R. No. 101279, August 6, 1992, 212
SCRA 298, 304, citing Philippine Communications Satellite
Corporation v. Alcuaz, 180 SCRA 218 (1989).
36
Progressive Development Corporation vs. Quezon City,
G.R. No. 36081, April 24, 1989, 172 SCRA 629, 635, citing
Manila Electric Company v. El Auditor General y La Comision
de Servicios Publicos, 73 Phil. 133 (1941); Republic v.
Philippine Rabbit Lines, 143 Phil. 158, 163 (1970).
37
The purposes are:
(a) Payment for the stranded debts in excess of the
amount assumed by the National Government and
stranded contract costs of NPC and as well as
 qualified stranded contract costs of distribution utilities
resulting from the restructuring of the industry;
(b) Missionary electrification;
(c) The equalization of the taxes and royalties applied
to indigenous or renewable sources of energy vis-à-
vis imported energy fuels;
(d) An environmental charge equivalent to one-fourth
of one centavo per kilowatt-hour (₱0.0025/kWh),
which shall accrue to an environmental fund to be
used solely for watershed rehabilitation and
management. Said fund shall be managed by NPC
under existing arrangements; and
(e) A charge to account for all forms of cross-
subsidies for a period not exceeding three (3) years.
38
Osmeña v. Orbos, supra note 19, at 710, Gaston v.
Republic Planters Bank, supra note 19, at 632, Tio v.
Videogram Regulatory Board, No. L-75697, June 18, 1987,
151 SCRA 208, 216, and Lutz v. Araneta, 98 Phil. 148 (1955).
39
Supra note 19, at 539; Decided jointly with Citizen's Alliance
for Consumer Protection v. Energy Regulatory Board., G.R.
Nos. L-78888-90, and Kilusang Mayo Uno Labor Center v.
Energy Regulatory, Board., G.R. Nos. L-79690-92.
40
Supra note 19, at 632-633.
41
Id. at 710-711.
42
Last paragraph, Sec. 34, EPIRA provides: The PSALM
Corp., as administrator of the fund, shall create a Special
Trust Fund which shall be disbursed only for the purposes
specified herein in an open and transparent manner. All
amount collected for the universal charge shall be distributed
to the respective beneficiaries within a reasonable period to
be provided by the ERC.
197
IRR of the EPIRA, Rule 18, SECTION 6, also
provides:
(a) Pursuant to the last paragraph of Section 34 of the
Act, PSALM shall act as the administrator of the funds
generated from the Universal Charge. For this
purpose, the PSALM shall create a STF to be
established in the Bureau of Treasury (BTr) or in a
Government Financing Institution (GFI) that is
acceptable to the DOF. Separate STFs shall be
established for each of the intended purposes of the
Universal Charge. Funds shall be disbursed in an
open and transparent manner and shall only be used
for the intended purposes specified in Section 3 of this
Rule.
43
EPIRA, Sec. 33, last paragraph and IRR, Sec. 5 (f), Rule
17.
44
IRR, Sec. 6 (f), Rule 18.
45
IRR, Sec. 4, Rule 21.
46
Supra note 23, at 177-178, citing Osmeña v. Orbos, supra
note 19.
47
Abakada Guro Party List v. Ermita, G.R. Nos. 168056,
168207, 168461, 168463 and 168730, September 1, 2005,
469 SCRA 10, 115-116.
48
The recognized exceptions to the general principle are as
follows:
(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 60
Supra note 37.

(5) Delegation to administrative bodies. Abakada 61

G.R. No. 161113, June 15, 2004, 432 SCRA 157, 182.
Guro Party List v. Ermita, supra note 47, at 117 and
Santiago v. Comelec, 336 Phil. 848, 897-898 (1997), 62
Id. at 219-220 (Emphasis supplied).
citing People v. Vera, 65 Phil. 56 (1937).
63
G.R. No. 163935, February 2, 2006, 481 SCRA 480, 515-
49
Equi-Asia Placement, Inc. v. DFA, G.R. No. 152214, 516, citing Freedom from Debt Coalition v. Energy Regulatory
September 19, 2006, citing Beltran v. Secretary of Health, Commission, supra note 61.
476 SCRA 168, 191 (2005); The Conference of Maritime
Manning Agencies v. Philippine Overseas Employment 64
Rollo, pp. 108-109
Agency, 313 Phil. 592, 606 (1995); and Eastern Shipping
Lines, Inc. v. Philippine Overseas Employment Agency, G.R.
Republic v. Kalaw, G.R. No. 155138, June 8, 2004, 431
65
No. L-76633, October 18, 1998, 166 SCRA 533, 543.
SCRA 401, 406.
50
Emphasis supplied. 66
Lopez v. City of Manila, G.R. No. 127139, February 19,
1999, 303 SCRA 448, 460, citing Ty v. Trampe, 250 SCRA
51
Rubi v. Provincial Board of Mindoro, supra note 33, at 706. 500 (1995).

Philippine Association of Colleges and University v.

52
Freedom from Debt Coalition v. Energy Regulatory
67
Secretary of Education, 97 Phil. 806, 814 (1955). Commission, supra note 61, at 171-172.
53
People v. Rosenthal, 68 Phil. 328, 342 (1939). 68
Arceta v. Mangrobang, G.R. Nos. 152895 & 153151, June
15, 2004, 432 SCRA 136, 142, citing Lacson v. The Executive
54
Antamok Gold Fields v. CIR, 70 Phil. 340 (1940). Secretary, 361 Phil. 251, 263 (1999).

55
Calalang v. Williams, 70 Phil. 726, 733 (1940).

56
Cervantes v. Auditor General, 91 Phil 359, 364 (1952).

Tablarin v. Gutierrez, No. L-78164, July 31, 1987, 152

57

SCRA 731.

58
The Conference of Maritime Manning Agencies, Inc. v.
Philippine Overseas Employment Administration, supra note
49.

59
Sec. 2(a) and (b), Declaration of Policies of the EPIRA.

198
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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 proponent1 and the main sponsor2 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,
199
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 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 X9 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
200
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:
(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.
201
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 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-EXAMINATION
202
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.
(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.
203
(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.
(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
204
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.
(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
205
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.
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.
I petition. 26 The COMELEC made no ruling thereon evidently because
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
206
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.
30. In the final analysis, when the system of
constitutional law is threatened by the political
ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount
majesty of the Constitution. 25
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
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.
207
Section 2 of Article XVII of the 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. 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 The interpellations on Section 2 showed that the details for carrying
proposed: out Section 2 are left to the legislature. Thus:

(a) by the National Assembly upon a vote of three- FR. BERNAS. Madam President, just
fourths of all its members; or two simple, clarificatory questions.

(b) by a constitutional convention; or First, on Section 1 on the matter of

initiative upon petition of at least 10
(c) directly by the people themselves thru initiative as percent, there are no details in the
provided for in Article___ Section ___of the provision on how to carry this out. Do
Constitution. 31 we understand, therefore, that we are
leaving this matter to the legislature?
After several interpellations, but before the period of
amendments, the Committee submitted a new formulation of MR. SUAREZ. That is right, Madam
the concept of initiative which it denominated as Section 2; President.
thus:
FR. BERNAS. And do we also
MR. SUAREZ. Thank you, Madam understand, therefore, that for as long
President. May we respectfully call as the legislature does not pass the
attention of the Members of the necessary implementing law on this,
Commission that pursuant to the this will not operate?
mandate given to us last night, we
submitted this afternoon a complete MR. SUAREZ. That matter was also
Committee Report No. 7 which taken up during the committee
embodies the proposed provision hearing, especially with respect to the
governing the matter of initiative. This budget appropriations which would
is now covered by Section 2 of the have to be legislated so that the
complete committee report. With the plebiscite could be called. We deemed
permission of the Members, may I it best that this matter be left to the
quote Section 2: legislature. The Gentleman is right. In
any event, as envisioned, no
The people may, after five years from the date of the amendment through the power of
last plebiscite held, directly propose amendments to initiative can be called until after five
this Constitution thru initiative upon petition of at least years from the date of the ratification
ten percent of the registered voters. of this Constitution. Therefore, the first
amendment that could be proposed
This completes the blanks appearing in the original through the exercise of this initiative
Committee Report No. 7. 32 power would be after five years. It is
reasonably expected that within that
five-year period, the National

208
 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
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
209
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
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?
210
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. MR. DAVIDE. It can.
— AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE xxx xxx xxx
DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE MR. ROMULO. But the
UPON A PETITION OF AT LEAST Commissioner's amendment does not
TWELVE PERCENT OF THE TOTAL prevent the legislature from asking
NUMBER Of REGISTERED VOTERS, another body to set the proposition in
OF WHICH EVERY LEGISLATIVE proper form.
DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF
MR. DAVIDE. The Commissioner is
THE REGISTERED VOTERS
correct. In other words, the
THEREOF. NO AMENDMENT
implementation of this particular right
UNDER THIS SECTION SHALL BE
would be subject to legislation,
AUTHORIZED WITHIN FIVE YEARS
provided the legislature cannot
FOLLOWING THE RATIFICATION OF
determine anymore the percentage of
THIS CONSTITUTION NOR
the requirement.
OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
MR. ROMULO. But the procedures,
including the determination of the
THE NATIONAL ASSEMBLY SHALL
proper form for submission to the
BY LAW PROVIDE FOR THE
people, may be subject to legislation.
IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. DAVIDE. As long as it will not
destroy the substantive right to initiate.
MR. SUAREZ. Madam President,
In other words, none of the procedures
considering that the proposed
to be proposed by the legislative body
amendment is reflective of the sense
must diminish or impair the right
contained in Section 2 of our
conceded here.
completed Committee Report No. 7,
we accept the proposed amendment. 36
MR. ROMULO. In that provision of the
Constitution can the procedures which
The interpellations which ensued on the proposed modified
I have discussed be legislated?
amendment to Section 2 clearly showed that it was a legislative act
which must implement the exercise of the right. Thus:
MR. DAVIDE. Yes. 37
MR. ROMULO. Under Commissioner
Davide's amendment, is it possible for Commissioner Davide also reaffirmed that his modified amendment
the legislature to set forth certain strictly confines initiative to AMENDMENTS to — NOT REVISION of
procedures to carry out the initiative. . — the Constitution. Thus:
.?
211
 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 "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
212
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
 FOR THE IMPLEMENTATION OF
THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986. 41Thereafter,
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
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 shall by law provide for the
45
implementation of the exercise of this right.
with
213
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
in Sections 1 and 32 of Article VI of the Constitution; and (b) House
Bill No. 988, 48 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 50 and 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:
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:
214
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).
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:
(b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the
215
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:
(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;
216
(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:
(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
217
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.
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 mandate to provide for the implementation of the right of the people
assist, through its election registrars, in the establishment of under that system.
signature stations; 65 and (4) to verify, through its election registrars,
the signatures on the basis of the registry list of voters, voters' WHEREFORE, judgment is hereby rendered
affidavits, and voters' identification cards used in the immediately
preceding election. 66 a) GRANTING the instant petition;

Since the Delfin Petition is not the initiatory petition under R.A. No. b) DECLARING R.A. No. 6735 inadequate to cover the system of
6735 and COMELEC Resolution No. 2300, it cannot be entertained initiative on amendments to the Constitution, and to have failed to
or given cognizance of by the COMELEC. The respondent provide sufficient standard for subordinate legislation;
Commission must have known that the petition does not fall under
any of the actions or proceedings under the COMELEC Rules of
c) DECLARING void those parts of Resolution No. 2300 of the
Procedure or under Resolution No. 2300, for which reason it did not
Commission on Elections prescribing rules and regulations on the
assign to the petition a docket number. Hence, the said petition was
conduct of initiative or amendments to the Constitution; and
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 d) ORDERING the Commission on Elections to forthwith DISMISS
December 1996, and the order directing Delfin and the oppositors to the DELFIN petition (UND-96-037).
file their memoranda or oppositions. In so dignifying it, the COMELEC
acted without jurisdiction or with grave abuse of discretion and merely The Temporary Restraining Order issued on 18 December 1996 is
wasted its time, energy, and resources. made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.
The foregoing considered, further discussion on the issue of whether
the proposal to lift the term limits of elective national and local officials Resolution on the matter of contempt is hereby reserved.
is an amendment to, and not a revision of, the Constitution is
rendered unnecessary, if not academic. SO ORDERED.

CONCLUSION Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima,

Jr. and Torres, Jr., JJ., concur.
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any Padilla, J., took no part.
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; Separate Opinions
it should be given flesh and blood, energy and strength. Congress
should not tarry any longer in complying with the constitutional

218
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:
I 1981 amendments to the Constitution of 1973
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.
215053 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 5expressly 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
219
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
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
220
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.
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,
221
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 concentrated on that. And that is why .
rate, as I have said, because this is . . so ang sa inyo naman includes iyon
new in our political system, the Senate sa Constitution, amendment to the
decided on a more cautious approach Constitution eh . . . national laws. Sa
and limiting it only to the local amin, if you insist on that, alright,
government units because even with although we feel na it will in effect
that stage where . . . at least this has become a dead statute. Alright, and
been quite popular, ano? It has been we can agree, we can agree. So ang
attempted on a national basis. Alright. mangyayari dito, and magiging basic
There has not been a single attempt. nito, let us not discuss anymore kung
Now, so, kami limitado doon. And, alin and magiging basic bill, ano,
second, we consider also that it is only whether it is the Senate Bill or whether
fair that the local legislative body it is the House bill. Logically it should
should be given a chance to adopt the be ours sapagkat una iyong sa amin
legislation bill proposed, right? Iyong eh. It is one of the first bills approved
sinasabing indirect system of initiative. by the Senate kaya ang number niyan,
If after all, the local legislative makikita mo, 17, eh. Huwag na nating
assembly or body is willing to adopt it pagusapan. Now, if you insist, really
in full or in toto, there ought to be any iyong features ng national at saka
reason for initiative, ano for initiative. constitutional, okay. ____ gagawin na
And, number 3, we feel that there natin na consolidation of both bills.
should be some limitation on the
frequency with which it should be HON. ROCO. Yes, we shall
applied. Number 4, na the people, thru consolidate.
initiative, cannot enact any ordinance
that is beyond the scope of authority of CHAIRMAN GONZALES.
the local legislative body, otherwise, Consolidation of the Senate and
my God, mag-aassume sila ng power House Bill No. so and so. 10
that is broader and greater than the
grant of legislative power to the
When the consolidated bill was presented to the House for
Sanggunians. And Number 5, because
approval, then Congressman Roco upon interpellation by
of that, then a proposition which has
Congressman Rodolfo Albano, again confirmed that it
been the result of a successful
covered people's initiative to amend the Constitution. The
initiative can only carry the force and
record of the House Representative states: 11
effect of an ordinance and therefore
that should not deprive the court of its
jurisdiction to declare it null and void xxx xxx xxx
for want of authority. Ha, di ba? I
mean it is beyond powers of local THE SPEAKER PRO TEMPORE. The
government units to enact. Iyon ang Gentleman from Camarines Sur is
main essence namin, so we recognized.

222
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
223
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.
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
224
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.
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
threeper 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
225
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 MR. ROMULO. Under Commissioner
not meet these well-settled requirements for a valid Davide's amendment, it is possible for
delegation of the power to fix the details in the the legislature to set forth certain
enforcement of a law. It does not enunciate any policy procedures to carry out the initiative. .
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. MR. DAVIDE. It can.

R.A. No. 6735 sufficiently states the policy and the standards to guide xxx xxx xxx
the COMELEC in promulgating the law's implementing rules and
regulations of the law. As aforestated, section 2 spells out the policy MR. ROMULO. But the
of the law; viz: "The power of the people under a system of initiative Commissioner's amendment does not
and referendum to directly propose, enact, approve or reject, in whole prevent the legislature from asking
or in part, the Constitution, laws, ordinances, or resolutions passed by another body to set the proposition in
any legislative body upon compliance with the requirements of this proper form.
Act is hereby affirmed, recognized and guaranteed." Spread out all
over R.A. No. 6735 are the standards to canalize the delegated
MR. DAVIDE. The Commissioner is
power to the COMELEC to promulgate rules and regulations from
correct. In other words, the
overflowing. Thus, the law states the number of signatures necessary
implementation of this particular right
to start a people's initiative, 18 directs how initiative proceeding is
would be subject to legislation,
commenced, 19 what the COMELEC should do upon filing of the
provided the legislature cannot
petition for initiative, 20 how a proposition is approved, 21 when a
determine anymore the percentage of
plebiscite may be held, 22 when the amendment takes effect 23 and
the requirement.
what matters may not be the subject of any initiative. 24 By any
measure, these standards are adequate.
MR. DAVIDE. As long as it will not
destroy the substantive right to initiate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient
In other words, none of the procedures
standard is intended to map out the boundaries of the delegates'
to be proposed by the legislative body
authority by defining the legislative policy and indicating the
must diminish or impair the right
circumstances under which it is to be pursued and effected. The
conceded here.
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 MR. ROMULO. In that provision of the
transferred its power to enact the law implementing people's initiative Constitution can the procedures which
to COMELEC. A close look at COMELEC Resolution No. 2300 will I have discussed be legislated?
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 MR. DAVIDE. Yes.
Constitution. The debates 26 in the Constitutional Commission make it
clear that the rules of procedure to enforce the people's initiative can In his book, The Intent of the 1986 Constitution
be delegated, thus: Writers, 27 Father Bernas likewise affirmed: "In response to
questions of Commissioner Romulo, Davide explained the

226
 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 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.
227
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 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
228
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.
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
229
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 theponencia 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, albeitpossibly
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:
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
230
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.
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
231
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:
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
232
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 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
233
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.
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.
234
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:
I
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.
215053 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 5expressly 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.
235
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
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.
236
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.
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
237
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 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.
238
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.
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.
239
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 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)
240
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
threeper 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:
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
241
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. .
.?
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
242
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 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
243
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 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
244
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.
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 theponencia 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
245
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, albeitpossibly
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 therein. Initiative on the constitution may be exercised
the law after publication in print media. [And] [t]his only after five (5) years from the ratification of the
indicates that Republic Act No. 6735 covers only laws 1987 Constitution and only once every five years
and not constitutional amendments, because thereafter.
constitutional amendments take effect upon
ratification not after publication.3 These provisions were inserted, on purpose, by Congress the
intent being to provide for the implementation of the right to
which allegation manifests petitioners' selective interpretation propose an amendment to the Constitution by way of
of the law, for under Section 9 of Republic Act No. 6735 on initiative. "A legal provision", the Court has previously said,
the Effectivity of Initiative or Referendum "must not be construed as to be a useless surplusage, and
Proposition paragraph (b) thereof is clear in providing that: accordingly, meaningless, in the sense of adding nothing to
the law or having no effect whatsoever thereon". 8 That this is
The proposition in an initiative on the constitution approved by a the legislative intent is further shown by the deliberations in
majority of the votes cast in the plebiscite shall become effective as to Congress, thus:
the day of the plebiscite.
. . . More significantly, in the course of the
It is a rule that every part of the statute must be interpreted with consideration of the Conference Committee Report on
reference the context, i.e., that every part of the statute must be the disagreeing provisions of Senate Bill No. 17 and
construed together with the other parts and kept subservient to the House Bill No. 21505, it was noted:
general intent of the whole enactment. 4 Thus, the provisions of
Republic Act No. 6735 may not be interpreted in isolation. The MR. ROCO. On the Conference
legislative intent behind every law is to be extracted from the statute Committee Report on the disagreeing
as a whole.5 provisions between Senate Bill No. 17
and the consolidated House Bill No.
In its definition of terms, Republic Act No. 6735 defines initiative as 21505 which refers to the system
"the power of the people to propose amendments to the constitution providing for the initiative and
or to propose and enact legislations through an election called for the referendum, fundamentally, Mr.
purpose".6The same section, in enumerating the three systems of Speaker, we consolidated the Senate
initiative, included an "initiative on the constitution which refers to a and the House versions, so both
petition proposing amendments to the constitution"7 Paragraph (e) versions are totally intact in the bill.
again of Section 3 defines "plebiscite" as "the electoral process by The Senators ironically provided for
which an initiative on the constitution is approved or rejected by the local initiative and referendum and the
people" And as to the material requirements for an initiative on the House of Representatives correctly
Constitution, Section 5(b) distinctly enumerates the following: provided for initiative and referendum
an the Constitution and on national
A petition for an initiative on the 1987 Constitution legislation.
must have at least twelve per centum (12%) of the
total number of the registered voters as signatories, of I move that we approve the
which every legislative district must be represented by consolidated bill.
at least three per centum (3%) of the registered voters

246
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.
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.
Clearly then, Republic Act No. 6735 covers an initiative on the
constitution. Any other construction as what petitioners foist
MR. ALBANO. So that we will now
upon the Court constitute a betrayal of the intent and spirit
have a complete initiative and
behind the enactment.
247
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
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, PANGANIBAN, J., concurring and dissenting:
1996 [Annexes B, C and B-1]) indicative of its having already
assumed jurisdiction over private respondents' petition. This is so Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing
because from the tenor of Section 5 (b) of R.A. No. 6735 it would for the majority, holds that:
appear that proof of procurement of the required percentage of
registered voters at the time the petition for initiative is filed, is a
(1) The Comelec acted without jurisdiction or with grave abuse of
jurisdictional requirement.
discretion in entertaining the "initiatory" Delfin Petition.
Thus:
(2) While the Constitution allows amendments to "be directly
proposed by the people through initiative," there is no implementing
A petition for an initiative on the 1987 Constitution law for the purpose. RA 6735 is "incomplete, inadequate, or wanting
must have at least twelve per centum (12%) of the in essential terms and conditions insofar as initiative on amendments
total number of registered voters as signatories, of to the Constitution is concerned."
which every legislative district must be represented by
at least three per centum (3%) of the registered voters
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and
therein. Initiative on the Constitution may be exercised
regulations on the conduct of initiative on amendments to the
only after five (5) years from the ratification of the
Constitution, is void."
1987 Constitution and only once every five (5) years
thereafter.
I concur with the first item above. Until and unless an initiatory
petition can show the required number of signatures — in this case,
Here private respondents' petition is unaccompanied by the
12% of all the registered voters in the Philippines with at least 3% in
required signatures. This defect notwithstanding, it is without
every legislative district — no public funds may be spent and no
prejudice to the refiling of their petition once compliance with
government resources may be used in an initiative to amend the
the required percentage is satisfactorily shown by private
Constitution. Verily, the Comelec cannot even entertain any petition
respondents. In the absence, therefore, of an appropriate
absent such signatures. However, I dissent most respectfully from the
petition before the Commission on Elections, any
majority's two other rulings. Let me explain.
determination of whether private respondents' proposal
constitutes an amendment or revision is premature.
Under the above restrictive holdings espoused by the Court's
majority, the Constitution cannot be amended at all through a
ACCORDINGLY, I take exception to the conclusion reached in
people's initiative. Not by Delfin, not by Pirma, not by anyone, not
the ponencia that R.A. No. 6735 is an "inadequate" legislation to
even by all the voters of the country acting together. This decision will
cover a people's initiative to propose amendments to the Constitution.
effectively but unnecessarily curtail, nullify, abrogate and render
I, however, register my concurrence with the dismissal, in the
inutile the people's right to change the basic law. At the very least, the
meantime, of private respondents' petition for initiative before public
majority holds the right hostage to congressional discretion on
respondent Commission on Elections until the same be supported by
whether to pass a new law to implement it, when there is already one
proof of strict compliance with Section 5 (b) of R.A. No. 6735.
existing at present. This right to amend through initiative, it bears
stressing, is guaranteed by Section 2, Article XVII of the Constitution,
Melo and Mendoza, JJ., concur. as follows:

248
 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."
249
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.
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.
Footnotes
1 Commissioner Blas Ople.
2 Commissioner Jose Suarez.
250
3 I Record of the Constitutional Commission, 371,
378.
4 Section 1, Article XV of the 1935 Constitution and
Section 1(1), Article XVI of the 1973 Constitution.
5 Annex "A" of Petition, Rollo, 15.
6 Later identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for
brevity.
7 These sections read:
Sec. 4. The term of office of the Senators shall be six
years and shall commence, unless otherwise provided
by law, at noon on the thirtieth day of June next
following their election.
No Senator shall serve for more than two consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House of
Representatives shall be elected for a term of three
years which shall begin, unless otherwise provided by
law, at noon on the thirtieth day of June next following
their election.
No Member of the House of Representatives shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected.
8 The section reads: 15 Rollo, 68.

Sec. 4. The President and the Vice-President shall be 16 Rollo, 100.

elected by direct vote of the people for a term of six
years which shall begin at noon on the thirtieth day of 17 Rollo, 130.
June next following the day of the election and shall
end at noon of the same date six years thereafter. 18 A Member of the 1986 Constitutional Commission.
The President shall not be eligible for any reelection.
No person who has succeeded as President and has
19 Section 26, Article II, Constitution.
served as such for more than four years shall be
qualified for election to the same office at any time.
20 Citing Commissioner Ople of the Constitutional
Commission, I Record of the Constitutional
No Vice-President shall serve for more than two
Commission, 405.
successive terms. Voluntary renunciation of the office
for any length or time shall not be considered as an
interruption in the continuity of the service for the full 21 Rollo, 239.
term for which he was elected.
22 Rollo, 304.
9 The section reads:
23 Rollo, 568.
Sec. 8. The term of office of elective local officials,
except barangay officials, which shall be determined 24 These were submitted on the following dates:
by law, shall be three years and no such official shall
serve for more than three consecutive terms. (a) Private respondent Delfin — 31
Voluntary renunciation of the office for any length of January 1997 (Rollo, 429);
time shall not be considered as an interruption in the
continuity of his service for the full term for which he (b) Private respondents Alberto and
was elected. Carmen Pedrosa — 10 February 1997
(Id., 446);
10 Rollo, 19.
(c) Petitioners — 12 February 1997
11 Annex "B" of Petition, Rollo, 25. (Id., 585);

12 Order of 12 December 1996, Annex "B-1" of (d) IBP — 12 February 1997 (Id., 476);
Petition, Rollo, 27.
(e) Senator Roco — 12 February 1997
13 Id. (Id., 606);

14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; (f) DIK and MABINI — 12 February
Sanidad v. COMELEC, 73 SCRA 333 [1976]. 1997 (Id., 465);

251
 (g) COMELEC — 12 February 1997 40 Id., 410.
(Id., 489);
41 Id., 412.
(h) LABAN — 13 February 1997 (Id.,
553). 42 II Record of the Constitutional Commission 559-
560.
25 Rollo, 594.
43 The Congress originally appeared as The National
26 Annex "D" of Roco's Motion for Intervention in this Assembly. The change came about as a logical
case, Rollo, 184. consequence of the amended Committee Report No.
22 of the Committee on Legislative which
27 Rollo, 28. changed The National Assembly to "The Congress of
the Philippines" in view of the approval of the
28 232 SCRA 110, 134 [1994]. amendment to adopt the bicameral system (II Record
of the Constitutional Commission 102-105). The
proposed new Article on the Legislative Department
29 II The Constitution of the Republic of the
was, after various amendments approved on Second
Philippines, A Commentary 571 [1988].
and Third Readings on 9 October 1986 (Id., 702-703)
30 I Record of the Constitutional Commission 370-
44 V Record of the Constitutional Commission 806.
371.
45 See footnote No. 42.
31 Id., 371.
46 As Stated by Commissioner Bernas in his
32 Id., 386.
interpellation of Commissioner Suarez, footnote 28.
33 Id., 391-392. (Emphasis supplied).
47 Entitled "Initiative and Referendum Act of 1987,"
introduced by then Congressmen Raul Roco, Raul del
34 Id., 386. Mar and Narciso Monfort.

35 Id., 392. 48 Entitled "An Act Implementing the Constitutional

Provisions on Initiative and Referendum and for Other
36 Id., 398-399. Purposes," introduced by Congressmen Salvador
Escudero.
37 Id., 399. Emphasis supplied.
49 Entitled "An Act Providing for a System of Initiative
38 Id., 402-403. and Referendum, and the Exceptions Therefrom,
Whereby People in Local Government Units Can
39 Id., 401-402. Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject Any Ordinance or

252
Resolution Passed By the Local Legislative Body,"
introduced by Senators Gonzales, Romulo, Pimentel,
Jr., and Lina, Jr.
50 IV Record of the Senate, No. 143, pp. 1509-1510.
51 VIII Journal and Record of the House of
Representatives, 957-961.
52 That section reads:
Sec. 1. Statement of Policy. The power of the people
under a system of initiative and referendum to directly
propose and enact resolutions and ordinances or
approve or reject, in whole or in part, any ordinance or
resolution passed by any local legislative body upon
compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed.
53 It must be pointed out that Senate Bill No. 17 and
House Bill No. 21505, as approved on Third Reading,
did not contain any subtitles.
54 If some confusion attended the preparation of the
subtitles resulting in the leaving out of the more
important and paramount system of initiative on
amendments to the Constitution, it was because there
was in the Bicameral Conference Committee an initial
agreement for the Senate panel to draft that portion
on local initiative and for the House of
Representatives panel to draft that portion covering
national initiative and initiative on the Constitution;
eventually, however, the Members thereof agreed to
leave the drafting of the consolidated bill to their staff.
Thus:
CHAIRMAN GONZALES.
. . . All right, and we can agree, we can agree. So ang
mangyayari dito, ang magiging basic nito, let us not
253
discuss anymore kung alin ang 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 pag-usapan. Now, if you
insist, really iyong features ng national at
saka constitutional, okay. Pero gagawin na nating
consolidation of both bills. (TSN, proceedings of the
Bicameral Conference Committee on 6 June 1989
submitted by Nora, R, pp. 1-4 — 1-5).
xxx xxx xxx
HON. ROCO. So how do we proceed from this? The
staff will consolidate.
HON. GONZALES. Gumawa lang ng isang draft.
Submit it to the Chairman, kami na ang bahalang
magconsult sa aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early tomorrow.
Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito.
Kung mabigyan tayo ng kopya bukas and you are not
objecting naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical
consolidation nga ito, eh. Yung mga provisions naman
namin wala sa inyo. (TSN, proceedings of Bicameral
Conference Committee of 6 June 1989, submitted by
E.S. Bongon, pp. III-4 — III-5).
55 Sec. 5(a & c), Sec. 8, Section 9(a).
56 Sections 13, 14, 15 and 16.
57 It would thus appear that the Senate's "cautious Conference Committee on 6 June 1989,
approach" in the implementation of the system of submitted by stenographer Nora R, pp. 1-2 to
initiative as a mode of proposing amendments to the 1-3).
Constitution, as expressed by Senator Gonzales in
the course of his sponsorship of Senate Bill No. 17 in In the last he declared:
the Bicameral Conference Committee meeting and in
his sponsorship of the Committee's Report, might The initiatives and referendum are new tools of
have insidiously haunted the preparation of the democracy; therefore, we have decided to be cautious
consolidated version of Senate Bill No. 17 and House in our approach. Hence, 1) we limited initiative and
Bill No. 21505. In the first he said: referendum to the local government units; 2) that
initiative can only be exercised if the local legislative
Senate Bill No. 17 recognizes the initiatives cannot be exercised more frequently that once every
and referendum are recent innovations in our year. (IV Records of the Senate, No. 143, pp. 15-9-
political system. And recognizing that, it has 1510).
adopted a cautious approach by: first, allowing
them only when the local legislative body had 58 Section 20, RA. No. 6735.
refused to act; second, not more frequently
than once a year; and, third, limiting them to
59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI
the national level. (I Record of the Senate, No.
A. CRUZ, Philippine Political Law 86 [1996] (hereafter
33, p. 871).
CRUZ).
xxx xxx xxx
60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra,
87.
First, as I have said Mr. President, and I am
saying for the nth time, that we are introducing
61 Pelaez v. Auditor General, 122 Phil. 965, 974
a novel and new system in politics. We have
[1965].
to adopt first a cautious approach. We feel it is
prudent and wise at this point in time, to limit
those powers that may be the subject of 62 Edu v. Ericta, 35 SCRA 481,497 [1970].
initiatives and referendum to those
exercisable or within the authority of the local 63 Sec. 7, COMELEC Resolution No. 2300.
government units. (Id., p. 880).
64 Sec. 28, id.
In the second he stated:
65 Sec. 29, id.
But at any rate, as I have said, because this is
new in our political system, the Senate 66 Sec. 30, id.
decided on a more cautious approach and
limiting it only to the local general units. (TSN PUNO, J., concurring and dissenting::
of the proceedings of the Bicameral

254
1 Agpalo, Statutory Construction, 1986 ed., p.
38, citing, inter alia, US v. Tamparong 31 Phil. 321;
Hernani v. Export Control Committee, 100 Phil. 973;
People v. Purisima, 86 SCRA 542.
2 Ibid, citing Torres v. Limjap, 56 Phil. 141.
3 Prepared and sponsored by the House Committee
on Suffrage and Electoral Reforms on the basis of
H.B. No. 497 introduced by Congressmen Raul Roco,
Raul del Mar and Narciso Monfort and H.B. No. 988
introduced by Congressman Salvador Escudero.
4 Introduced by Senators Neptali Gonzales, Alberto
Romulo, Aquilino Pimentel, Jr., and Jose Lina, Jr.
5 It was entitled "An Act Providing a System of
Initiative and Referendum and Appropriating Funds
therefor.
6 Journal No. 85, February 14, 1989, p. 121.
7 Ibid.
8 The Senate Committee was chaired by Senator
Neptali Gonzales with Senators Agapito Aquino and
John Osmena as members. The House Committee
was chaired by Congressman Magdaleno M. Palacol
with Congressmen Raul Roco, Salvador H. Escudero
III and Joaquin Chipeco, Jr., as members.
9 Held at Constancia Room, Ciudad Fernandina,
Greenhills, San Juan, Metro Manila.
10 See Compliance submitted by intervenor Roco
dated January 28, 1997.
11 Record No. 137, June 8, 1989, pp. 960-961.
255
12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7
(1910); US v. Navarro, 19 Phil 134 (1911).
13 Francisco, Statutory Construction, 3rd ed., (1968)
pp. 145-146 citing Crawford, Statutory Construction,
pp. 337-338.
14 Black, Handbook on the Construction and
Interpretation of the Laws (2nd ed), pp. 258-259. See
also Commissioner of Custom v. Relunia, 105 Phil
875 (1959); People v. Yabut, 58 Phil 499 (1933).
15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris
on Statutes, p. 237.
16 Entitled In re: Rules and Regulations Governing
the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local Laws
and promulgated on January 16, 1991 by the
COMELEC with Commissioner Haydee B. Yorac as
Acting Chairperson and Commissioners Alfredo E.
Abueg, Jr., Leopoldo L. Africa, Andres R. Flores,
Dario C. Rama and Magdara B. Dimaampao.
17 15 SCRA 569.
18 Sec. 5(b), R.A. No. 6735.
19 Sec. 5(b), R.A. No. 6735.
20 Sec. 7, R.A. No. 6735.
21 Sec. 9(b), R.A. No. 6735.
22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art.
XVII of the Constitution.
23 Sec. 9(b), R.A. No. 6735.
24 Sec. 10, R.A. No. 6735.
25 Cruz, Philippine Political Law, 1995 ed., p. 98.
26 See July 8, 1986 Debates of the Concom, p. 399.
27 1995 ed., p. 1207.
28 Cruz, op cit., p. 99.
29 320 US 99.
30 Balbuena v. Secretary of Education, 110 Phil 150
(1910).
31 People v. Rosenthal, 68 Phil 328 (1939).
32 Calalang v. Williams, 70 Phil 726 (1940).
33 Rubi v. Provincial Board of Mindoro, 39 Phil 669
(1919).
34 International Hardwood v. Pangil Federation of
Labor, 70 Phil 602 (1940).
35 Phil. Association of Colleges and Universities v.
Secretary of Education, 97 Phil 806 (1955).
36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v.
Edu, 88 SCRA 195 (1979).
37 Pepsi Cola Bottling Co. vs. Municipality of
Tanawan Leyte, 69 SCRA 460 (1976).
38 Maceda v. Macaraig, 197 SCRA 771 (1991).
39 Osmena v. Orbos, 220 SCRA 703 (1993).
40 Chiongbian v. Orbos, 245 SCRA 253 (1995).
256
41 Garcia v. COMELEC, et al., G.R. No. 111511,
October 5, 1993.
42 Garcia, et al. v. COMELEC, et al., G.R. No.
111230, September 30, 1994.
43 Subic Bay Metropolitan Authority v. COMELEC, et
al., G.R. No. 125416, September 26, 1996.
44 Malonzo vs. COMELEC, et al., G.R. No. 127066,
March 11, 1997.
FRANCISCO, J., concurring and dissenting:
1 Article II, Section 1, 1987 Constitution.
2 Article VI, Section 32, and Article XVII, Section 2,
1987 Constitution.
3 Petition, p. 5.
4 Paras v. Commission on Elections, G.R. No.
123619, December 4, 1996.
5 Tamayo v. Gsell, 35 Phil. 953, 980.
6 Section 3 (a), Republic Act No 6735.
7 Section 3(a) [a.1], Republic Act No 6735.
8 Uytengsu v. Republic, 95 Phil. 890, 893
9 Petition in Intervention filed by Sen. Raul Roco, pp.
15-16.
PANGANIBAN, J., concurring and dissenting:
1 Apart from its text on "national initiative" which could
be used by analogy, RA 6735 contains sufficient
provisions covering initiative on the Constitution,
which are clear enough and speak for themselves,
like:
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
resolution passed by any legislative body upon
compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed.
Sec. 3. Definition of Terms. — For purposes of this
Act, the following terms shall mean:
(a) "Initiative" is the power of the
people to propose amendments to the
Constitution or to propose and enact
legislation's through an election called
for the purpose.
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.
xxx xxx xxx
257
(e) "Plebiscite" is the electoral process
by which an initiative on the
Constitution is approved or rejected by
the people
(f) "Petition" is the written instrument
containing the proposition and the
required number of signatories. It shall
be in a form to be determined by and
submitted to the Commission on
Elections, hereinafter referred to as
the Commission
xxx xxx xxx
Sec. 5 Requirements. — . . .
(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.
Sec. 9. Effectivity of Initiative or Referendum
Proposition. —
xxx xxx xxx
(b) 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.
 xxx xxx xxx Sec. 20. Rules and Regulations. — The Commission
is hereby empowered to promulgate such rules and
(c) The petition shall state the regulations as may be necessary to carry out the
following: purposes of this Act. (Emphasis supplied)

c.1 contents or text of 2 G.R. No. 125416, September 26, 1996.

the proposed law
sought to be enacted, 3 237 SCRA 279, 282, September 30, 1994.
approved or rejected,
amended or repealed, 4 Sec. 20, R.A. 6735.
as the case may be;
5 United States vs. Rosika Schwimmer, 279 U.S. 644,
c.2 the proposition; 655 (1929).

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 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.

xxx xxx xxx

Sec. 19. Applicability of the Omnibus Election Code.

— The Omnibus Election Code and other election
laws, not inconsistent with the provisions of this Act,
shall apply to all initiatives and referenda.

258
 EN BANC Solidarity of Health Against Charter Change, DR. REGINALD
PAMUGAS of Health Action for Human Rights, Intervenors.
G.R. No. 174153 October 25, 2006
x--------------------------------------------------------x
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER
WITH 6,327,952 REGISTERED VOTERS,Petitioners, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA
vs. THERESA HONTIVEROS-BARAQUEL,Intervenors.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------- x
x ------------------------------------------------------ x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. x---------------------------------------------------------x
OPLE, and CARLOS P. MEDINA, JR., Intervenors.
LUWALHATI RICASA ANTONINO, Intervenor.
x------------------------------------------------------ x
x ------------------------------------------------------- x
ATTY. PETE QUIRINO QUADRA, Intervenor.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
x--------------------------------------------------------x CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
BAYAN represented by its Chairperson Dr. Carolina Pagaduan- FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
Araullo, BAYAN MUNA represented by its Chairperson Dr.
Reynaldo Lesaca, KILUSANG MAYO UNO represented by its x ------------------------------------------------------- x
Secretary General Joel Maglunsod, HEAD represented by its
Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
BISHOPS FORUM represented by Fr. Dionito Cabillas, BAYA, Intervenors.
MIGRANTE represented by its Chairperson Concepcion Bragas-
Regalado, GABRIELA represented by its Secretary General
x -------------------------------------------------------- x
Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN
represented by Chairperson Eleanor de Guzman, LEAGUE OF PHILIPPINE TRANSPORT AND GENERAL WORKERS
FILIPINO STUDENTS represented by Chair Vencer Crisostomo ORGANIZATION (PTGWO) and MR. VICTORINO F.
Palabay, JOJO PINEDA of the League of Concerned BALAIS, Intervenors.
Professionals and Businessmen, DR. DARBY SANTIAGO of the
x -------------------------------------------------------- x

259
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
260
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T.
FERRER, and John Doe and Peter Doe,, Respondent.
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
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
261
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
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)
262
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 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
263
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
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 ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY
people. The proponents secure the signatures in their private IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS
capacity and not as public officials. The proponents are not TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM
disinterested parties who can impartially explain the advantages and ONE SYSTEM TO ANOTHER?"
disadvantages of the proposed amendments to the people. The
proponents present favorably their proposal to the people and do not I hereby APPROVE the proposed amendment to the 1987
present the arguments against their proposal. The proponents, or Constitution. My signature herein which shall form part of the petition
their supporters, often pay those who gather the signatures. for initiative to amend the Constitution signifies my support for the
filing thereof.
Thus, there is no presumption that the proponents observed the
constitutional requirements in gathering the signatures. The Precinct Name Address Birthdate Signa
proponents bear the burden of proving that they complied with the Number
constitutional requirements in gathering the signatures - that the
Last Name, First MM/DD/YY
petition contained, or incorporated by attachment, the full text of
Name, M.I.
the proposed amendments.
1
The Lambino Group did not attach to their present petition with this 2
Court a copy of the paper that the people signed as their initiative 3
petition. The Lambino Group submitted to this Court a copy of 4
a signature sheet20 after the oral arguments of 26 September 2006 5
when they filed their Memorandum on 11 October 2006. The
6
signature sheet with this Court during the oral arguments was the
signature sheet attached21 to the opposition in intervention filed on 7 7
September 2006 by intervenor Atty. Pete Quirino-Quadra. 8
9
The signature sheet attached to Atty. Quadra's opposition and the 10
signature sheet attached to the Lambino Group's Memorandum are
the same. We reproduce below the signature sheet in full: _________________ _________________ ______
Barangay Official Witness
Province: City/Municipality: No. of (Print Name and Sign) (Print Name and Sign) (Print N
Legislative District: Barangay:
Verified There is not a single word, phrase, or sentence of text of the
Lambino Group's proposed changes in the signature sheet.
Signatures: Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul Lambino
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF admitted this during the oral arguments before this Court on 26
ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING September 2006.
THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL- The signature sheet merely asks a question whether the people
PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO approve a shift from the Bicameral-Presidential to the Unicameral-

264
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)
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
265
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.
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.
266
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 (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 Secundumpulls 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-
267
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 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.
268
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)
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.
269
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:
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:
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
270
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
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:
271
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 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
272
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,32the 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
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
273
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.
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.
The abolition alone of the Office of the President as the locus of
Executive Power alters the separation of powers and thus constitutes
274
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.
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.
275
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
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
276
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
 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
277
"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 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
278
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 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.
279
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.
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
280
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, 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
281
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
"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
282
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, 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];
283
c.3 the reason or reasons therefor [fully and clearly
explained];
c.4 that it is not one of exceptions provided herein;
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.
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?
284
"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
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
285
"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.
 "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.
286
"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.
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
287
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.
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 contemptuous. It
288
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?
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
289
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."
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.
290
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
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
291
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.:
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?
MR. SUAREZ. Yes, by signatures.
292
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
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.8An 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
293
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 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
suppress portions 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.
294
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
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
295
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)
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
296
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 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.
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
297
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 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
298
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 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
299
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.
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.
300
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 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
301
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, 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, 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
302
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.
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
303
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.
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 even if it, too, disagreed with said decision's ratio decidendi.
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
304
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
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:
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.
305
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
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 Article XVII of the 1987 Constitution lays down the means for its
can establish that there is some relevant dissimilarity after all amendment and revision. Thus:
between the individuals concerned and their circumstances,
he or they will be guilty as charged.18 Section 1. Any amendment to, or revision of, this
Constitution may be proposed by:
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 (1) The Congress, upon a vote of three-fourths of all
jurisprudential policy that prior applicable precedent usually must be its members; or
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 (2) A Constitutional Convention.
assumption that certainty, predictability and stability in the law
are the major objectives of the legal system; i.e., that parties
Section 2. Amendments to this Constitution may likewise be
should be able to regulate their conduct and enter into
directly proposed by the people through initiative upon a
relationships with reasonable assurance of the governing rules
petition of at least twelve per centum of the total number of
of law.19 Accordingly, a party urging overruling a precedent faces a
registered votes, of which every legislative district must be
rightly onerous task, the difficulty of which is roughly proportional to a
represented by at least three per centum of the registered
number of factors, including the age of the precedent, the nature
voters therein. x x x. (Emphasis supplied)
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. 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
Santiago v. COMELEC was decided by this Court on March 19, 1997
Constitutions. Thus, under these two (2) Constitutions, there was no
or more than nine (9) years ago. During that span of time, the Filipino
demand to draw the distinction between an amendment and a
people, specifically the law practitioners, law professors, law
revision, both being governed by a uniform process. This is not so
students, the entire judiciary and litigants have recognized this
under our present Constitution. The distinction between an
Court's Decision as a precedent. In fact, the Santiago doctrine was
amendment and a revision becomes crucial because only
applied by this Court in the subsequent case of PIRMA. Even the
amendments are allowed under the system of people's
legislature has relied on said Decision, thus, several bills have been
initiative. Revisions are within the exclusive domain of Congress,
introduced in both Houses of Congress to cure the deficiency. I
upon a vote of three-fourths of all its members, or of a Constitutional
cannot fathom why it should be overturned or set aside merely on the
Convention.
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 The deliberations of the 1986 Constitutional Commission is explicit
to the Constitution is concerned remains a precedent and must be that Section 2, Article XVII covers only amendments, thus:
upheld.
The sponsor, Commissioner Suarez, is recognized.
III
The proposed constitutional changes constitute revisions and MR. SUAREZ: Thank you, Madam President.
not mere amendments
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given us last night,

306
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
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
307
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:
"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
308
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 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
309
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:
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
310
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 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
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;
311
· 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 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
312
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.
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.
313
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
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 signatures understood what they signed. In fact,
314
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.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

315
 EN BANC PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES VI
AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE
G.R. No. 174153 ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE
PARLIAMENTARY SYSTEM." The case was docketed as EM (LD)-
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 06-01. On August 30, 2006, petitioners filed an amended petition. For
6,327,952 REGISTERED VOTERS, petitioners, brevity, it is referred to as the petition for initiative.
vs.
THE COMMISSION ON ELECTIONS, respondent. Petitioners alleged therein, inter alia, that they filed their petition in
their own behalf and together with those who have affixed their
G.R. No. 174299 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 (12%) of all the registered voters in
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE
the country, wherein each legislative district is represented by at least
A.Q. SAGUISAG, petitioners,
three percent (3%) of all the registered voters therein.
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners Petitioners further alleged therein that the filing of the petition for
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., initiative is based on their constitutional right to propose amendments
ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN DOE to the 1987 Constitution by way of people's initiative, as recognized in
and PETER DOE, respondents. Section 2, Article XVII thereof, which provides:

x ---------------------------------------------------------------------------------------- x SEC. 2. Amendments to this Constitution may likewise be

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
316
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) 6735,1are 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
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
317
"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.
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.
318
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.
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
319
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.
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:
320
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
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
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
321
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. 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.
322
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
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
323
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 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.
324
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.
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."
325
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, 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.
(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
326
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 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
327
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" 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:
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

328
 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
329
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"?
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,35 the controversial decision which gave imprimatur to the
1973 Constitution of former President Ferdinand E. Marcos, as
follows:
330
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 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:
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
331
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
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.
332
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;
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);
333
- (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.;
- (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.
334
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);
- 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;
- Section 18 (6) on the duty of the Commission on
Human Rights to recommend to Congress effective
measures to promote human rights;
335
- 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 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
336
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 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
337
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;
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 2nd Legislative 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)
338
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
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, Maguindanao;68 Datu
Paglas, Maguindanao;69 Datu Piang, Maguindanao;70 Shariff Aguak,
Maguindanao;71 Pagalungan, Maguindanao;72Talayan,
Maguindanao;73 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;88 Luuk, 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
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
339
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.
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
340
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 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
341
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 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 action must be educated to venerate it; those already upon the stage
ratified the Constitution, the Filipino people believed that it is "a good must be taught to obey it. Whatever interest may be advanced or may
Constitution" and in the words of the learned Judge Cooley: suffer, whoever or whatever may be 'voted up or voted down,' no
sacrilegious hand must be laid upon the constitution."120
x x x should be beyond the reach of temporary excitement
and popular caprice or passion. It is needed for stability and WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153
steadiness; it must yield to the thought of the people; not to and to GRANT the petition in G.R. No. 174299.
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 ROMEO J. CALLEJO, SR.
in government are to be feared unless the benefit is certain. Associate Justice
As Montaign says: "All great mutations shake and disorder a
state. Good does not necessarily succeed evil; another evil
____________________
may succeed and worse.118
EN BANC
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 G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON
involved in the present case, and have given to its consideration the ELECTIONS, ET AL.) and
earnest attention which its importance demands. I have sought to
maintain the supremacy of the Constitution at whatever hazard. I G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs.
share the concern of Chief Justice Day in Koehler v. Hill:119 "it is for COMMISSION ON ELECTIONS, ET AL.).
the protection of minorities that constitutions are framed. Sometimes
constitutions must be interposed for the protection of majorities even x ---------------------------------------------------------------------------------------- x
against themselves. Constitutions are adopted in times of public
repose, when sober reason holds her citadel, and are designed to SEPARATE OPINION
check the surging passions in times of popular excitement. But if
courts could be coerced by popular majorities into a disregard of their AZCUNA, J.:
provisions, constitutions would become mere 'ropes of sand,' and
there would be an end of social security and of constitutional
"Why, friends, you go to do you know not what."
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 -- Shakespeare, Julius Caesar, Act III, Sc. 2.
inflict. That large and respectable class of moral reformers which so
justly demands the observance and enforcement of law, cannot afford Article XVII of the Constitution states:
to take its first reformatory step by a violation of the constitution. How
can it consistently demand of others obedience to a constitution AMENDMENTS OR REVISIONS
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 Section 1. Any amendment to, or revision of, this Constitution
years is nothing. The constitution is the palladium of republican may be proposed by:
freedom. The young men coming forward upon the stage of political

342
 (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 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
votes 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.
Sec. 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority
vote of all its Members, submit to the electorate the question
of calling such a convention.
Sec. 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 on Elections of
the sufficiency of the petition.
This Article states the procedure for changing the Constitution.
Constitutions have three parts – the Constitution of Liberty, which
states the fundamental rights of the people; the Constitution of
Government, which establishes the structure of government, its
343
branches and their operation; and the Constitution of Sovereignty,
which provides how the Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent
powers. So when Congress acts under this provision, it acts not as a
legislature exercising legislative powers. It acts as a constituent body
exercising constituent powers.
The rules, therefore, governing the exercise of legislative powers do
not apply, or do not apply strictly, to the actions taken under Article
XVII.
Accordingly, since Article XVII states that Congress shall provide for
the implementation of the exercise of the people's right directly to
propose amendments to the Constitution through initiative, the act of
Congress pursuant thereto is not strictly a legislative action but
partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the
exercise of the people of the right to propose a law or amendments to
the Constitution is, with respect to the right to propose amendments
to the Constitution, a constituent measure, not a mere legislative one.
The consequence of this special character of the enactment, insofar
as it relates to proposing amendments to the Constitution, is that the
requirements for statutory enactments, such as sufficiency of
standards and the like, do not and should not strictly apply. As long
as there is a sufficient and clear intent to provide for the
implementation of the exercise of the right, it should be sustained, as
it is simply a compliance of the mandate placed on Congress by the
Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating to
the procedure for proposing amendments to the Constitution, can and
should be upheld, despite shortcomings perhaps in legislative
headings and standards.
For this reason, I concur in the view that Santiago v. Comelec1 should
be re-examined and, after doing so, that the pronouncement therein
regarding the insufficiency or inadequacy of the measure to sustain a
people's initiative to amend the Constitution should be reconsidered
in favor of allowing the exercise of this sovereign right.
And applying the doctrine stated in Senarillos v.
Hermosisima,2 penned by Justice J.B.L. Reyes, in relation to Article 8
of the Civil Code, that a decision of this Court interpreting a law forms
part of the law interpreted as of the time of its enactment, Republic
Act No. 6735 should be deemed sufficient and adequate from the
start.
This next point to address, there being a sufficient law, is whether the
petition for initiative herein involved complies with the requirements of
that law as well as those stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the
Declaration of Principles, to emphasize precisely that there are
instances recognized and provided for in the Constitution where our
people directly exercise their sovereign powers, new features set
forth in this People Power Charter, namely, the powers of recall,
initiative and referendum.
Nevertheless, this democratic nature of our polity is that of a
democracy under the rule of law. This equally important point is
emphasized in the very Preamble to the Constitution, which states:
". . . the blessings of . . . democracy under the rule of law . . .
."
Such is the case with respect to the power to initiate changes in the
Constitution. The power is subject to limitations under the
Constitution itself, thus: The power could not be exercised for the first
five years after the Constitution took effect and thereafter can only be
exercised once every five years; the power only extends to proposing
amendments but not revisions; and the power needs an act of
Congress providing for its implementation, which act is directed and
mandated.
344
The question, therefore, arises whether the proposed changes in the
Constitution set forth in the petition for initiative herein involved are
mere amendments or rather are revisions.
Revisions are changes that affect the entire Constitution and not
mere parts of it.
The reason why revisions are not allowed through direct proposals by
the people through initiative is a practical one, namely, there is no
one to draft such extensive changes, since 6.3 million people cannot
conceivably come up with a single extensive document through a
direct proposal from each of them. Someone would have to draft it
and that is not authorized as it would not be a direct proposal from
the people. Such indirect proposals can only take the form of
proposals from Congress as a Constituent Assembly under Article
XVII, or a Constitutional Convention created under the same
provision. Furthermore, there is a need for such deliberative bodies
for revisions because their proceedings and debates are duly and
officially recorded, so that future cases of interpretations can be
properly aided by resort to the record of their proceedings.
Even a cursory reading of the proposed changes contained in the
petition for initiative herein involved will show on its face that the
proposed changes constitute a revision of the Constitution. The
proposal is to change the system of government from that which is
bicameral-presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the fact
is, as the petition and text of the proposed changes themselves state,
every provision of the Constitution will have to be examined to see if
they conform to the nature of a unicameral-parliamentary form of
government and changed accordingly if they do not so conform to it.
For example, Article VIII on Judicial Department cannot stand as is, in
a parliamentary system, for under such a system, the Parliament is
supreme, and thus the Court's power to declare its act a grave abuse
of discretion and thus void would be an anomaly.
Now, who is to do such examination and who is to do such changes
and how should the changes be worded? The proposed initiative
does not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a of Public Officers, and Article XVIII on Transitory Provisions. These
prohibited revision but it also suffers from being incomplete and are mere amendments, substantial ones indeed but still only
insufficient on its very face. amendments, and they address only one subject matter.

It, therefore, in that form, cannot pass muster the very limits
contained in providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states in
Section 10 that not more than one subject shall be proposed as an
amendment or amendments to the Constitution. The petition herein
would propose at the very least two subjects – a unicameral
legislature and a parliamentary form of government. Again, for this
clear and patent violation of the very act that provides for the exercise
of the power, the proposed initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view,
separable in nature – a unicameral legislature is one; a parliamentary
form of government is another. The first is a mere amendment and
contains only one subject matter. The second is clearly a revision that
affects every article and every provision in the Constitution to an
extent not even the proponents could at present fully articulate.
Petitioners Lambino, et al. thus go about proposing changes the
nature and extent of which they do not as yet know exactly what.
Such proposal, moreover, complies with the intention and rationale
behind the present initiative, which is to provide for simplicity and
economy in government and reduce the stalemates that often prevent
needed legislation.
For the nonce, therefore, I vote to DISMISS the petition, without
prejudice to the filing of an appropriate initiative to propose
amendments to the Constitution to change Congress into a
unicameral body. This is not say that I favor such a change. Rather,
such a proposal would come within the purview of an initiative
allowed under Article XVII of the Constitution and its implementing
Republic Act, and should, therefore, be submitted to our people in a
plebiscite for them to decide in their sovereign capacity. After all is
said and done, this is what democracy under the rule of law is about.
ADOLFO S. AZCUNA
Associate Justice

The proposal, therefore, contained in the petition for initiative,

regarding a change in the legislature from a bicameral or two-
chamber body to that of a unicameral or one-chamber body, is
sustainable. The text of the changes needed to carry it out are
perfunctory and ministerial in nature. Once it is limited to this
proposal, the changes are simply one of deletion and insertions, the
wordings of which are practically automatic and non-discretionary.

As an example, I attach to this opinion an Appendix "A" showing how

the Constitution would read if we were to change Congress from one
consisting of the Senate and the House of Representatives to one
consisting only of the House of Representatives. It only affects Article
VI on the Legislative Department, some provisions on Article VII on
the Executive Department, as well as Article XI on the Accountability

345
 EN BANC dated August 31, 2006, denying due course to the Petition for
Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado
G. R. No. 174153 October 25, 2006 in their own behalf and together with some 6.3 million registered
voters who have affixed their signatures thereon, and praying for the
RAUL L. LAMBINO and ERICO B. AUMENTADO together with issuance of a writ of mandamus to compel respondent COMELEC to
6,327,952 REGISTERED VOTERS set the date of the plebiscite for the ratification of the proposed
vs. amendments to the Constitution in accordance with Section 2, Article
THE COMMISSION ON ELECTIONS XVII of the 1987 Constitution.

G.R. No. 174299 October 25, 2006 First, a flashback of the proceedings of yesteryears. In 1996, the
Movement for People's Initiative sought to exercise the sovereign
people's power to directly propose amendments to the Constitution
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE
through initiative under Section 2, Article XVII of the 1987
A. Q. SAGUISAG
Constitution. Its founding member, Atty. Jesus S. Delfin, filed with the
vs.
COMELEC on December 6, 1996, a "Petition to Amend the
COMMISSION ON ELECTIONS, represented by Chairman
Constitution, to Lift Term Limits of Elective Officials, by People's
BENJAMIN S. ABALOS, SR., and Commissioners
Initiative" (Delfin Petition). It proposed to amend Sections 4 and 7 of
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
Article VI, Section 4 of Article VII, and Section 8 of Article X of the
ROMEO A. BRAWNER, RENE V. SARMIENTO, and NICODEMO T.
1987 Constitution by deleting the provisions on the term limits for all
FERRER, and John Doe and Peter Doe
elective officials.
x ---------------------------------------------------------------------------------------- x
The Delfin Petition stated that the Petition for Initiative would first be
submitted to the people and would be formally filed with the
"It is a Constitution we are expounding…"1 COMELEC after it is signed by at least twelve per cent (12%) of the
total number of registered voters in the country. It thus sought the
– Chief Justice John Marshall assistance of the COMELEC in gathering the required signatures
by fixing the dates and time therefor and setting up signature
DISSENTING OPINION stations on the assigned dates and time. The petition prayed that
the COMELEC issue an Order (1) fixing the dates and time for
PUNO, J.: signature gathering all over the country; (2) causing the publication of
said Order and the petition for initiative in newspapers of general and
The petition at bar is not a fight over molehills. At the crux of the local circulation; and, (3) instructing the municipal election registrars
controversy is the critical understanding of the first and foremost of in all the regions of the Philippines to assist petitioner and the
our constitutional principles — "the Philippines is a democratic and volunteers in establishing signing stations on the dates and time
republican State. Sovereignty resides in the people and all designated for the purpose.
government authority emanates from them."2 Constitutionalism
dictates that this creed must be respected with deeds; our belief in its The COMELEC conducted a hearing on the Delfin Petition.
validity must be backed by behavior.
On December 18, 1996, Senator Miriam Defensor Santiago,
This is a Petition for Certiorari and Mandamus to set aside the Alexander Padilla and Maria Isabel Ongpin filed a special civil action
resolution of respondent Commission on Elections (COMELEC) for prohibition before this Court, seeking to restrain the COMELEC
346
from further considering the Delfin Petition. They impleaded as
respondents the COMELEC, Delfin, and Alberto and Carmen
Pedrosa (Pedrosas) in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action (PIRMA)
which was likewise engaged in signature gathering to support an
initiative to amend the Constitution. They argued that the
constitutional provision on people's initiative may only be
implemented by a law passed by Congress; that no such law has yet
been enacted by Congress; that Republic Act No. 6735 relied upon
by Delfin does not cover the initiative to amend the Constitution; and
that COMELEC Resolution No. 2300, the implementing rules adopted
by the COMELEC on the conduct of initiative, was ultra vires insofar
as the initiative to amend the Constitution was concerned. The case
was docketed as G.R. No. 127325, entitled Santiago v. Commission
on Elections.3
Pending resolution of the case, the Court issued a temporary
restraining order enjoining the COMELEC from proceeding with the
Delfin Petition and the Pedrosas from conducting a signature drive for
people's initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the
petition for prohibition. The Court ruled that the constitutional
provision granting the people the power to directly amend the
Constitution through initiative is not self-executory. An enabling law is
necessary to implement the exercise of the people's right. Examining
the provisions of R.A. 6735, a majority of eight (8) members of the
Court held that said law was "incomplete, inadequate, or wanting
in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned,"4 and thus voided
portions of COMELEC Resolution No. 2300 prescribing rules and
regulations on the conduct of initiative on amendments to the
Constitution. It was also held that even if R.A. 6735 sufficiently
covered the initiative to amend the Constitution and COMELEC
Resolution No. 2300 was valid, the Delfin Petition should still be
dismissed as it was not the proper initiatory pleading
contemplated by law. Under Section 2, Article VII of the 1987
Constitution and Section 5(b) of R.A. 6735, a petition for initiative on
the Constitution must be signed by at least twelve per cent (12%) of
the total number of registered voters, of which every legislative district
is represented by at least three per cent (3%) of the registered voters
347
therein. The Delfin Petition did not contain signatures of the
required number of voters. The decision stated:
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;
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 against the Commission on
Elections, but is LIFTED as against private respondents.5
Eight (8) members of the Court, namely, then Associate Justice
Hilario G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa,
and Associate Justices Florenz D. Regalado, Flerida Ruth P.
Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C.
Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority
opinion.
While all the members of the Court who participated in the
deliberation6 agreed that the Delfin Petition should be dismissed for
lack of the required signatures, five (5) members, namely, Associate
Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza,
Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735
was sufficient and adequate to implement the people's right to amend
the Constitution through initiative, and that COMELEC Resolution No.
2300 validly provided the details for the actual exercise of such
right. Justice Jose C. Vitug, on the other hand, opined that the Court
should confine itself to resolving the issue of whether the Delfin
Petition sufficiently complied with the requirements of the law on
initiative, and there was no need to rule on the adequacy of R.A.
6735.
The COMELEC, Delfin and the Pedrosas filed separate motions for
reconsideration of the Court's decision.
After deliberating on the motions for reconsideration, six (6)7 of
the eight (8) majority members maintained their position that R.A.
6735 was inadequate to implement the provision on the initiative on
amendments to the Constitution. Justice Torres filed an inhibition,
while Justice Hermosisima submitted a Separate Opinion adopting
the position of the minority that R.A. 6735 sufficiently covers the
initiative to amend the Constitution. Hence, of the thirteen (13)
members of the Court who participated in the deliberation, six (6)
members, namely, Chief Justice Narvasa and Associate Justices
Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the
motions for lack of merit; and six (6) members, namely, Associate
Justices Melo, Puno, Mendoza, Francisco, Hermosisima and
Panganiban voted to grant the same. Justice Vitug maintained his
opinion that the matter was not ripe for judicial adjudication. The
motions for reconsideration were therefore denied for lack of
sufficient votes to modify or reverse the decision of March 19, 1997.8
348
On June 23, 1997, PIRMA filed with the COMELEC a Petition for
Initiative to Propose Amendments to the Constitution (PIRMA
Petition). The PIRMA Petition was supported by around five (5)
million signatures in compliance with R.A. 6735 and COMELEC
Resolution No. 2300, and prayed that the COMELEC, among others:
(1) cause the publication of the petition in Filipino and English at least
twice in newspapers of general and local circulation; (2) order all
election officers to verify the signatures collected in support of the
petition and submit these to the Commission; and (3) set the holding
of a plebiscite where the following proposition would be submitted to
the people for ratification:
Do you approve amendments to the 1987 Constitution giving
the President the chance to be reelected for another term,
similarly with the Vice-President, so that both the highest
officials of the land can serve for two consecutive terms of six
years each, and also to lift the term limits for all other elective
government officials, thus giving Filipino voters the freedom of
choice, amending for that purpose, Section 4 of Article VII,
Sections 4 and 7 of Article VI and Section 8 of Article X,
respectively?
The COMELEC dismissed the PIRMA Petition in view of the
permanent restraining order issued by the Court in Santiago v.
COMELEC.
PIRMA filed with this Court a Petition for Mandamus and Certiorari
seeking to set aside the COMELEC Resolution dismissing its petition
for initiative. PIRMA argued that the Court's decision on the Delfin
Petition did not bar the COMELEC from acting on the PIRMA Petition
as said ruling was not definitive based on the deadlocked voting on
the motions for reconsideration, and because there was no identity of
parties and subject matter between the two petitions. PIRMA also
urged the Court to reexamine its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its
resolution dated September 23, 1997. It explained:
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 at 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 a
need for such a re-examination x x x x9
In their Separate Opinions, Justice (later Chief Justice) Davide and
Justice Bellosillo stated that the PIRMA petition was dismissed on the
ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks
to utilize anew the system of initiative to amend the Constitution, this
time to change the form of government from bicameral-presidential to
unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
On February 15, 2006, Sigaw ng Bayan, in coordination with Union
of Local Authorities of the Philippines (ULAP), embarked on a
nationwide drive to gather signatures to support the move to adopt
the parliamentary form of government in the country through charter
change. They proposed to amend the Constitution as follows:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be
amended to read as follows:
349
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, 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 "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 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
350
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 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.
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 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.10
Sigaw ng Bayan prepared signature sheets, on the upper portions of
which were written the abstract of the proposed amendments, to wit:
Abstract: 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?
The signature sheets were distributed nationwide to affiliated non-
government organizations and volunteers of Sigaw ng Bayan, as well
as to the local officials. Copies of the draft petition for initiative
containing the proposition were also circulated to the local officials
and multi-sectoral groups.
351
Sigaw ng Bayan alleged that it also held barangay
assemblies which culminated on March 24, 25 and 26, 2006, to
inform the people and explain to them the proposed amendments to
the Constitution. Thereafter, they circulated the signature sheets for
signing.
The signature sheets were then submitted to the local election
officers for verification based on the voters' registration record.
Upon completion of the verification process, the respective local
election officers issued certifications to attest that the signature
sheets have been verified. The verified signature sheets were
subsequently transmitted to the office of Sigaw ng Bayan for the
counting of the signatures.
On August 25, 2006, herein petitioners Raul L. Lambino and Erico B.
Aumentado filed with the COMELEC a Petition for Initiative to Amend
the Constitution 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."
They filed an Amended Petition on August 30, 2006 to reflect the text
of the proposed amendment that was actually presented to the
people. They alleged that they were 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.
Petitioners appended to the petition signature sheets bearing the
signatures of registered voters which they claimed to have been
verified by the respective city or municipal election officers, and
allegedly 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 therein.
As basis for the filing of their petition for initiative, petitioners
averred that Section 5 (b) and (c), together with Section 7 of
R.A. 6735, provide sufficient enabling details for the people's
exercise of the power. Hence, petitioners 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 the COMELEC of
the sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.
Several groups filed with the COMELEC their respective
oppositions to the petition for initiative, among them ONEVOICE,
Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III,
Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.;
Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q.
Pimentel, Jr., Senators Sergio Osmeña III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and
Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario
Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela
Women's Party, Anakbayan, League of Filipino Students, Leonardo
San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas;
Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar,
Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C.
Tabayoyong.
On August 31, 2006, the COMELEC denied due course to the
Petition for Initiative. It cited this Court's ruling in Santiago v.
COMELEC11 permanently enjoining the Commission 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.
Forthwith, petitioners filed with this Court the instant Petition for
Certiorari and Mandamus praying that the Court set aside the August
31, 2006 resolution of the COMELEC, direct respondent COMELEC
to comply with Section 4, Article XVII of the Constitution, and set the
date of the plebiscite. They state the following grounds in support of
the petition:
I.
352
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.
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.
Assuming in arguendo that there is no enabling law,
respondent COMELEC cannot ignore the will of the
sovereign people and must accordingly act on the
petition for initiative.
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 vs.
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.
353
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.12
The oppositors-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.; Alternative Law Groups, Inc.;
Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino
Students, Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and
Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel,
Jr., and Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S.
Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy
Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja,
and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-
Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A.
Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to
intervene in this case and filed their respective
Oppositions/Comments-in-Intervention.
The Philippine Constitution Association, Conrado F. Estrella, Tomas
C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T.
Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the
Integrated Bar of the Philippines Cebu City and Cebu Province
Chapters; former President Joseph Ejercito Estrada and Pwersa ng
Masang Pilipino; and the Senate of the Philippines, represented by
Senate President Manuel Villar, Jr., also filed their respective motions
for intervention and Comments-in-Intervention.
The Trade Union Congress of the Philippines, Sulongbayan
Movement Foundation, Inc., Ronald L. Adamat, Rolando Manuel
Rivera, Ruelo Baya, Philippine Transport and General Workers
Organization, and Victorino F. Balais likewise moved to intervene and
submitted to the Court a Petition-in-Intervention. All interventions and
oppositions were granted by the Court.
The oppositors-intervenors essentially submit that the COMELEC
did not commit grave abuse of discretion in denying due course to the
petition for initiative as it merely followed this Court's ruling
in Santiago v. COMELEC as affirmed in the case of PIRMA v.
COMELEC, based on the principle of stare decisis; that there is no
sufficient law providing for the authority and the details for the
exercise of people's initiative to amend the Constitution; that the
proposed changes to the Constitution are actually revisions, not mere
amendments; that the petition for initiative does not meet the required
number of signatories under Section 2, Article XVII of the 1987
Constitution; that it was not shown that the people have been
informed of the proposed amendments as there was disparity
between the proposal presented to them and the proposed
amendments attached to the petition for initiative, if indeed there was;
that the verification process was done ex parte, thus rendering
dubious the signatures attached to the petition for initiative; and that
petitioners Lambino and Aumentado have no legal capacity to
represent the signatories in the petition for initiative.
The Office of the Solicitor General (OSG), in compliance with the
Court's resolution of September 5, 2006, filed its Comment to the
petition. Affirming the position of the petitioners, the OSG prayed that
the Court grant the petition at bar and render judgment: (1) declaring
R.A. 6735 as adequate to cover or as reasonably sufficient to
implement the system of initiative on amendments to the Constitution
and as having provided sufficient standards for subordinate
legislation; (2) declaring as valid the provisions of COMELEC
Resolution No. 2300 on the conduct of initiative or amendments to
the Constitution; (3) setting aside the assailed resolution of the
COMELEC for having been rendered with grave abuse of discretion
amounting to lack or excess of jurisdiction; and, (4) directing the
COMELEC to grant the petition for initiative and set the
corresponding plebiscite pursuant to R.A. 6735, COMELEC
Resolution No. 2300, and other pertinent election laws and
regulations.
The COMELEC filed its own Comment stating that its resolution
denying the petition for initiative is not tainted with grave abuse of
354
discretion as it merely adhered to the ruling of this Court in Santiago
v. COMELEC which declared that R.A. 6735 does not adequately
implement the constitutional provision on initiative to amend the
Constitution. It invoked the permanent injunction issued by the Court
against the COMELEC from taking cognizance of petitions for
initiative on amendments to the Constitution until a valid enabling law
shall have been passed by Congress. It asserted that the permanent
injunction covers not only the Delfin Petition, but also all other
petitions involving constitutional initiatives.
On September 26, 2006, the Court heard the case. The parties were
required to argue on the following issues:13
1. Whether petitioners Lambino and Aumentado are proper
parties to file the present Petition in behalf of the more than
six million voters who allegedly signed the proposal to amend
the Constitution.
2. Whether the Petitions for Initiative filed before the
Commission on Elections complied with Section 2, Article
XVII of the Constitution.
3. Whether the Court's decision in Santiago v. COMELEC
(G.R. No. 127325, March 19, 1997) bars the present petition.
4. Whether the Court should re-examine the ruling in Santiago
v. COMELEC that there is no sufficient law implementing or
authorizing the exercise of people's initiative to amend the
Constitution.
5. Assuming R.A. 6735 is sufficient, whether the Petitions for
Initiative filed with the COMELEC have complied with its
provisions.
5.1 Whether the said petitions are sufficient in form
and substance.
5.2 Whether the proposed changes embrace more
than one subject matter.
 6. Whether the proposed changes constitute an amendment
or revision of the Constitution.
6.1 Whether the proposed changes are the proper
subject of an initiative.
7. Whether the exercise of an initiative to propose
amendments to the Constitution is a political question to be
determined solely by the sovereign people.
8. Whether the Commission on Elections committed grave
abuse of discretion in dismissing the Petitions for Initiative
filed before it.
With humility, I offer the following views to these issues as profiled:
I has acted without or in excess of his jurisdiction, or with grave
Petitioners Lambino and Aumentado are proper parties to
file the present Petition in behalf of the more than six
million voters who allegedly signed the proposal to
amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and
Aumentado are not the proper parties to file the instant petition as
they were not authorized by the signatories in the petition for
initiative.
The argument deserves scant attention. The Constitution requires
that the petition for initiative should be filed by at least twelve per cent
(12%) of all registered voters, of which every legislative district must
be represented by at least three per cent (3%) of all the registered
voters therein. The petition for initiative filed by Lambino and
Aumentado before the COMELEC was accompanied by voluminous
signature sheets which prima facie show the intent of the signatories
to support the filing of said petition. Stated above their signatures in
the signature sheets is the following:
355
x x x My signature herein which shall form part of the petition
for initiative to amend the Constitution signifies my support for
the filing thereof.14
There is thus no need for the more than six (6) million signatories to
execute separate documents to authorize petitioners to file the
petition for initiative in their behalf.
Neither is it necessary for said signatories to authorize Lambino and
Aumentado to file the petition for certiorari and mandamus before this
Court. Rule 65 of the 1997 Rules of Civil Procedure provides who
may file a petition for certiorari and mandamus. Sections 1 and 3 of
Rule 65 read:
SECTION 1. Petition for certiorari.—When any tribunal,
board or officer exercising judicial or quasi-judicial functions
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, nor 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 x x x x.
SEC. 3. Petition for mandamus.—When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station x x x and there is
no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a
verified petition in the proper court x x x x.
Thus, any person aggrieved by the act or inaction of the respondent
tribunal, board or officer may file a petition for certiorari or mandamus
before the appropriate court. Certainly, Lambino and Aumentado, as
among the proponents of the petition for initiative dismissed by the
COMELEC, have the standing to file the petition at bar.
II
 The doctrine of stare decisis does not bar the
reexamination of Santiago.
The latin phrase stare decisis et non quieta movere means "stand
by the thing and do not disturb the calm." The doctrine started with
the English Courts.15 Blackstone observed that at the beginning of
the 18th century, "it is an established rule to abide by former
precedents where the same points come again in litigation."16 As the
rule evolved, early limits to its application were recognized: (1) it
would not be followed if it were "plainly unreasonable;" (2) where
courts of equal authority developed conflicting decisions; and, (3) the
binding force of the decision was the "actual principle or principles
necessary for the decision; not the words or reasoning used to reach
the decision."17
The doctrine migrated to the United States. It was recognized by
the framers of the U.S. Constitution.18 According to Hamilton, "strict
rules and precedents" are necessary to prevent "arbitrary discretion in
the courts."19 Madison agreed but stressed that "x x x once the
precedent ventures into the realm of altering or repealing the
law, it should be rejected."20 Prof. Consovoy well noted that
Hamilton and Madison "disagree about the countervailing policy
considerations that would allow a judge to abandon a
precedent."21 He added that their ideas "reveal a deep internal conflict
between the concreteness required by the rule of law and the
flexibility demanded in error correction. It is this internal conflict
that the Supreme Court has attempted to deal with for over two
centuries."22
Indeed, two centuries of American case law will confirm Prof.
Consovoy's observation although stare decisisdeveloped its own life
in the United States. Two strains of stare decisis have been isolated
by legal scholars.23 The first, known as vertical stare decisis deals
with the duty of lower courts to apply the decisions of the higher
courts to cases involving the same facts. The second, known
as horizontal stare decisis requires that high courts must follow
its own precedents. Prof. Consovoy correctly observes
that vertical stare decisis has been viewed as
an obligation, while horizontal stare decisis, has been viewed as
a policy, imposing choice but not a command.24 Indeed, stare
decisis is not one of the precepts set in stone in our Constitution.
356
It is also instructive to distinguish the two kinds of horizontal stare
decisis — constitutional stare decisis and statutory stare
decisis.25 Constitutional stare decisis involves judicial
interpretations of the Constitution while statutory stare
decisis involves interpretations of statutes. The distinction is
important for courts enjoy more flexibility in refusing to apply stare
decisis in constitutional litigations. Justice Brandeis' view on the
binding effect of the doctrine in constitutional litigations still holds
sway today. In soothing prose, Brandeis stated: "Stare
decisis is not . . . a universal and inexorable command. The rule
of stare decisis is not inflexible. Whether it shall be followed or
departed from, is a question entirely within the discretion of the
court, which is again called upon to consider a question once
decided."26 In the same vein, the venerable Justice
Frankfurter opined: "the ultimate touchstone of constitutionality is the
Constitution itself and not what we have said about it."27 In
contrast, the application of stare decisis on judicial interpretation of
statutes is more inflexible. As Justice Stevens explains: "after a
statute has been construed, either by this Court or by a consistent
course of decision by other federal judges and agencies, it acquires a
meaning that should be as clear as if the judicial gloss had been
drafted by the Congress itself."28 This stance reflects both respect for
Congress' role and the need to preserve the courts' limited resources.
In general, courts follow the stare decisis rule for an ensemble of
reasons,29 viz: (1) it legitimizes judicial institutions; (2) it promotes
judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare decisis rule
where30 (1) its application perpetuates illegitimate and
unconstitutional holdings; (2) it cannot accommodate changing social
and political understandings; (3) it leaves the power to overturn bad
constitutional law solely in the hands of Congress; and, (4) activist
judges can dictate the policy for future courts while judges that
respect stare decisis are stuck agreeing with them.
In its 200-year history, the U.S. Supreme Court has refused to
follow the stare decisis rule and reversed its decisions in 192
cases.31 The most famous of these reversals is Brown v. Board of
Education32 which junked Plessy v. Ferguson's33 "separate but
equal doctrine." Plessy upheld as constitutional a state law
requirement that races be segregated on public transportation.
In Brown, the U.S. Supreme Court, unanimously held that "separate
. . . is inherently unequal." Thus, by freeing itself from the shackles
of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has
likewise refused to be straitjacketed by the stare decisis rule in order
to promote public welfare. In La Bugal-B'laan Tribal Association, Inc.
v. Ramos,34 we reversed our original ruling that certain provisions of
the Mining Law are unconstitutional. Similarly, in Secretary of
Justice v. Lantion,35 we overturned our first ruling and held, on
motion for reconsideration, that a private respondent is bereft of the
right to notice and hearing during the evaluation stage of the
extradition process.
An examination of decisions on stare decisis in major countries
will show that courts are agreed on the factors that should be
considered before overturning prior rulings. These are
workability, reliance, intervening developments in the law and
changes in fact. In addition, courts put in the balance the
following determinants: closeness of the voting, age of the prior
decision and its merits.36
The leading case in deciding whether a court should follow the stare
decisis rule in constitutional litigations is Planned Parenthood v.
Casey.37 It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in
defying practical workability; (2) consider whether the rule is subject
to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of
repudiation; (3) determine whether related principles of law have
so far developed as to have the old rule no more than a remnant of
an abandoned doctrine; and, (4) find out whether facts have so
changed or come to be seen differently, as to have robbed the old
rule of significant application or justification.
Following these guidelines, I submit that the stare decisis rule
should not bar the reexamination of Santiago. On the factor of
intolerability, the six (6) justices in Santiago held R.A. 6735 to be
insufficient as it provided no standard to guide COMELEC in issuing
its implementing rules. The Santiago ruling that R.A. 6735 is
insufficient but without striking it down as unconstitutional is
an intolerable aberration, the only one of its kind in our planet. It
357
improperly assails the ability of legislators to write laws. It usurps the
exclusive right of legislators to determine how far laws implementing
constitutional mandates should be crafted. It is elementary that courts
cannot dictate on Congress the style of writing good laws, anymore
than Congress can tell courts how to write literate decisions. The
doctrine of separation of powers forbids this Court to invade the
exclusive lawmaking domain of Congress for courts can construe
laws but cannot construct them. The end result of the ruling of the
six (6) justices that R.A. 6735 is insufficient is intolerable for it
rendered lifeless the sovereign right of the people to amend the
Constitution via an initiative.
On the factor of reliance, the ruling of the six (6) justices
in Santiago did not induce any expectation from the people. On the
contrary, the ruling smothered the hope of the people that they could
amend the Constitution by direct action. Moreover, reliance is a non-
factor in the case at bar for it is more appropriate to consider in
decisions involving contracts where private rights are adjudicated.
The case at bar involves no private rights but the sovereignty of the
people.
On the factor of changes in law and in facts, certain realities on
ground cannot be blinked away. The urgent need to adjust certain
provisions of the 1987 Constitution to enable the country to compete
in the new millennium is given. The only point of contention is the
mode to effect the change - - - whether through constituent assembly,
constitutional convention or people's initiative. Petitioners claim that
they have gathered over six (6) million registered voters who want to
amend the Constitution through people's initiative and that their
signatures have been verified by registrars of the COMELEC. The six
(6) justices who ruled that R.A. 6735 is insufficient to implement
the direct right of the people to amend the Constitution through
an initiative cannot waylay the will of 6.3 million people who are
the bearers of our sovereignty and from whom all government
authority emanates. New developments in our internal and external
social, economic, and political settings demand the reexamination of
the Santiago case. The stare decisis rule is no reason for this
Court to allow the people to step into the future with a blindfold.
III
 A reexamination of R.A. 6735 will show that it is sufficient
to implement the people's initiative.
Let us reexamine the validity of the view of the six (6) justices that
R.A. 6735 is insufficient to implement Section 2, Article XVII of the
1987 Constitution allowing amendments to the Constitution to be
directly proposed by the people through initiative.
When laws are challenged as unconstitutional, courts are counseled
to give life to the intent of legislators. In enacting R.A. 6735, it is
daylight luminous that Congress intended the said law to implement
the right of the people, thru initiative, to propose amendments to the
Constitution by direct action. This all-important intent is palpable from
the following:
First. The text of R.A. 6735 is replete with references to the right of
the people to initiate changes to the Constitution:
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)
It 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."
It provides the requirements for a petition for initiative to amend the
Constitution, viz:
(1) 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
358
legislative district must be represented by at least three per
centum (3%) of the registered voters therein;"38 and
(2) 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."39
It fixes the effectivity date of the amendment under Section 9(b)
which provides 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."
Second. The legislative history of R.A. 6735 also reveals the clear
intent of the lawmakers to use it as the instrument to implement
people's initiative. No less than former Chief Justice Hilario G.
Davide, Jr., the ponente in Santiago, concedes:40
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 x x x x 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 and by the House of
Representatives. This approved bill is now R.A. No. 6735.
Third. The sponsorship speeches by the authors of R.A. 6735
similarly demonstrate beyond doubt this intent. In his sponsorship
remarks, the late Senator Raul Roco (then a Member of the House
of Representatives) emphasized the intent to make initiative as a
mode whereby the people can propose amendments to the
Constitution. We quote his relevant remarks:41
SPONSORSHIP REMAKRS OF REP. ROCO
MR. ROCO. Mr. Speaker, with the permission of the
committee, we wish to speak in support of House Bill No. 497,
entitled: INITIATIVE AND REFERENDUM ACT OF 1987,
which later on may be called Initiative and Referendum Act of
1989.
As a background, we want to point out the constitutional basis
of this particular bill. The grant of plenary legislative power
upon the Philippine Congress by the 1935, 1973 and 1987
Constitutions, Mr. Speaker, was based on the principle that
any power deemed to be legislative by usage and tradition is
necessarily possessed by the Philippine Congress unless the
Organic Act has lodged it elsewhere. This was a citation
from Vera vs. Avelino (1946).
The presidential system introduced by the 1935 Constitution
saw the application of the principle of separation of powers.
While under the parliamentary system of the 1973
Constitution the principle remained applicable, Amendment 6
or the 1981 amendments to the 1973 Constitution ensured
presidential dominance over the Batasang Pambansa.
Our constitutional history saw the shifting and sharing of
legislative power between the legislature and the executive.
Transcending such changes in the exercise of legislative
power is the declaration in the Philippine Constitution that he
Philippines is a Republican State where sovereignty resides
in the people and all government authority emanates from
them.
In a Republic, Mr. Speaker, the power to govern is vested in
its citizens participating through the right of suffrage and
indicating thereby their choice of lawmakers.
Under the 1987 Constitution, lawmaking power is still
preserved in Congress. However, to institutionalize direct
action of the people as exemplified in the 1986 Revolution,
there is a practical recognition of what we refer to as people's
sovereign power. This is the recognition of a system of
initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides, and I
quote:
359
The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and
House of Representatives, except to the extent
reserved to the people by the provision on initiative
and referendum.
In other words, Mr. Speaker, under the 1987 Constitution,
Congress does not have plenary powers. There is a reserved
legislative power given to the people expressly.
Section 32, the implementing provision of the same article of
the Constitution provides, and I quote:
The Congress shall, as early as possible, provide for
a system of initiative and referendum, and the
exceptions therefrom, whereby the people can directly
propose and enact laws or approve or reject any act
or law or part thereof passed by the Congress or local
legislative body after the registration of a petition
therefor signed by at least ten per centum of the total
number of registered voters, or which every legislative
district must be represented by at least three per
centum of the registered voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI which
describes legislative power, there are reserved powers given
to the people. In Section 32, we are specifically told to pass at
the soonest possible time a bill on referendum and initiative.
We are specifically mandated to share the legislative powers
of Congress with the people.
Of course, another applicable provision in the Constitution is
Section 2, Article XVII, Mr. Speaker. Under the provision on
amending the Constitution, the section reads, and I quote:
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.
We in Congress therefore, Mr. Speaker, are charged with the
duty to implement the exercise by the people of the right of
initiative and referendum.
House Bill No. 21505, as reported out by the Committee on
Suffrage and Electoral Reforms last December 14, 1988, Mr.
Speaker, is the response to such a constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to show
where initiative and referendum under Philippine law has
occurred.
Mr. Speaker, the system of initiative and referendum is not
new. In a very limited extent, the system is provided for in our
Local Government Code today. On initiative, for instance,
Section 99 of the said code vests in the barangay assembly
the power to initiate legislative processes, to hold plebiscites
and to hear reports of the sangguniang barangay. There are
variations of initiative and referendum. The barangay
assembly is composed of all persons who have been actual
residents of the barangay for at least six months, who are at
least 15 years of age and citizens of the Philippines. The
holding of barangay plebiscites and referendum is also
provided in Sections 100 and 101 of the same Code.
Mr. Speaker, for brevity I will not read the pertinent quotations
but will just submit the same to the Secretary to be
incorporated as part of my speech.
To continue, Mr. Speaker these same principles are
extensively applied by the Local Government Code as it is
now mandated by the 1987 Constitution.
360
In other jurisdictions, Mr. Speaker, we have ample examples
of initiative and referendum similar to what is now contained
in House Bill No. 21505. As in the 1987 Constitutions and
House Bill No. 21505, the various constitutions of the states in
the United States recognize the right of registered voters to
initiate the enactment of any statute or to reject any existing
law or parts thereof in a referendum. These states are Alaska,
Alabama, Montana, Massachusetts, Dakota, Oklahoma,
Oregon, and practically all other states.
In certain American states, the kind of laws to which initiative
and referendum applies is also without ay limitation, except
for emergency measures, which is likewise incorporated in
Section 7(b) of House Bill No. 21505.
The procedure provided by the House bill – from the filing of
the petition, the requirement of a certain percentage of
supporters to present a proposition to submission to electors
– is substantially similar to those of many American laws. Mr.
Speaker, those among us who may have been in the United
States, particularly in California, during election time or last
November during the election would have noticed different
propositions posted in the city walls. They were propositions
submitted by the people for incorporation during the voting.
These were in the nature of initiative, Mr. Speaker.
Although an infant then in Philippine political structure,
initiative and referendum is a tried and tested system in other
jurisdictions, and House Bill No. 21505 through the various
consolidated bills is patterned after American experience in a
great respect.
What does the bill essentially say, Mr. Speaker? Allow me to
try to bring our colleagues slowly through the bill. The bill has
basically only 12 sections. The constitutional Commissioners,
Mr. Speaker, saw this system of initiative and referendum as
an instrument which can be used should the legislature show
itself indifferent to the needs of the people. That is why, Mr.
Speaker, it may be timely, since we seem to be amply
criticized, as regards our responsiveness, to pass this bill on
referendum and initiative now. While indifference would not
be an appropriate term to use at this time, and surely it is not
the case although we are so criticized, one must note that it is
a felt necessity of our times that laws need to be proposed
and adopted at the soonest possible time to spur economic
development, safeguard individual rights and liberties, and
share governmental power with the people.
With the legislative powers of the President gone, we alone,
together with the Senators when they are minded to agree
with us, are left with the burden of enacting the needed
legislation.
Let me now bring our colleagues, Mr. Speaker, to the process
advocated by the bill.
First, initiative and referendum, Mr. Speaker, is defined.
Initiative essentially is what the term connotes. It means that
the people, on their own political judgment, submit fore the
consideration and voting of the general electorate a bill or a
piece of legislation.
Under House Bill No. 21505, there are three kinds of initiative.
One is an initiative to amend the Constitution. This can occur
once every five years. Another is an initiative to amend
statutes that we may have approved. Had this bill been an
existing law, Mr. Speaker, it is most likely that an
overwhelming majority of the barangays in the Philippines
would have approved by initiative the matter of direct voting.
The third mode of initiative, Mr. Speaker, refers to a petition
proposing to enact regional, provincial, city, municipal or
barangay laws or ordinances. It comes from the people and it
must be submitted directly to the electorate. The bill gives a
definite procedure and allows the COMELEC to define rules
and regulations to give teeth to the power of initiative.
On the other hand, referendum, Mr. Speaker, is the power of
the people to approve or reject something that Congress has
already approved.
361
For instance, Mr. Speaker, when we divide the municipalities
or the barangays into two or three, we must first get the
consent of the people affected through plebiscite or
referendum.
Referendum is a mode of plebiscite, Mr. Speaker. However,
referendum can also be petitioned by the people if, for
instance, they do not life the bill on direct elections and it is
approved subsequently by the Senate. If this bill had already
become a law, then the people could petition that a
referendum be conducted so that the acts of Congress can be
appropriately approved or rebuffed.
The initial stage, Mr. Speaker, is what we call the petition. As
envisioned in the bill, the initiative comes from the people,
from registered voters of the country, by presenting a
proposition so that the people can then submit a petition,
which is a piece of paper that contains the proposition. The
proposition in the example I have been citing is whether there
should be direct elections during the barangay elections. So
the petition must be filed in the appropriate agency and the
proposition must be clear stated. It can be tedious but that is
how an effort to have direct democracy operates.
Section 4 of the bill gives requirements, Mr. Speaker. It will
not be all that easy to have referendum or initiative petitioned
by the people. Under Section 4 of the committee report, we
are given certain limitations. For instance, to exercise the
power of initiative or referendum, at least 10 percent of the
total number of registered voters, of which every legislative
district is represented by at least 3 percent of the registered
voters thereof, shall sign a petition. These numbers, Mr.
Speaker, are not taken from the air. They are mandated by
the Constitution. There must be a requirement of 10 percent
for ordinary laws and 3 percent representing all districts. The
same requirement is mutatis mutandis or appropriately
modified and applied to the different sections. So if it is, for
instance, a petition on initiative or referendum for a barangay,
there is a 10 percent or a certain number required of the
voters of the barangay. If it is for a district, there is also a
certain number required of all towns of the district that must
seek the petition. If it is for a province then again a certain
percentage of the provincial electors is required. All these are
based with reference to the constitutional mandate.
The conduct of the initiative and referendum shall be
supervised and shall be upon the call of the Commission on
Elections. However, within a period of 30 days from receipt of
the petition, the COMELEC shall determine the sufficiency of
the petition, publish the same and set the date of the
referendum which shall not be earlier than 45 days but not
later than 90 days from the determination by the commission
of the sufficiency of the petition. Why is this so, Mr. Speaker?
The petition must first be determined by the commission as to
its sufficiency because our Constitution requires that no bill
can be approved unless it contains one subject matter. It is
conceivable that in the fervor of an initiative or referendum,
Mr. Speaker, there may be more than two topics sought to be
approved and that cannot be allowed. In fact, that is one of
the prohibitions under this referendum and initiative bill. When
a matter under initiative or referendum is approved by the
required number of votes, Mr. Speaker, it shall become
effective 15 days following the completion of its publication in
the Official Gazette. Effectively then, Mr. Speaker, all the bill
seeks to do is to enlarge and recognize the legislative powers
of the Filipino people.
Mr. Speaker, I think this Congress, particularly this House,
cannot ignore or cannot be insensitive to the call for initiative
and referendum. We should have done it in 1987 but that is
past. Maybe we should have done it in 1988 but that too had
already passed, but it is only February 1989, Mr. Speaker,
and we have enough time this year at least to respond to the
need of our people to participate directly in the work of
legislation.
For these reasons, Mr. Speaker, we urge and implore our
colleagues to approve House Bill No. 21505 as incorporated
in Committee Report No. 423 of the Committee on Suffrage
and Electoral Reforms.
362
In closing, Mr. Speaker, I also request that the prepared text
of my speech, together with the footnotes since they contain
many references to statutory history and foreign jurisdiction,
be reproduced as part of the Record for future purposes.
Equally unequivocal on the intent of R.A. 6735 is the sponsorship
speech of former Representative Salvador Escudero III, viz:42
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent years
highlighted the need to heed the clamor of the people for a
truly popular democracy. One recalls the impatience of those
who actively participated in the parliament of the streets,
some of whom are now distinguished Members of this
Chamber. A substantial segment of the population feel
increasingly that under the system, the people have the form
but not the reality or substance of democracy because of the
increasingly elitist approach of their chosen Representatives
to many questions vitally affecting their lives. There have
been complaints, not altogether unfounded, that many
candidates easily forge their campaign promises to the people
once elected to office. The 1986 Constitutional Commission
deemed it wise and proper to provide for a means whereby
the people can exercise the reserve power to legislate or
propose amendments to the Constitution directly in case their
chose Representatives fail to live up to their expectations.
That reserve power known as initiative is explicitly recognized
in three articles and four sections of the 1987 Constitution,
namely: Article VI Section 1; the same article, Section 312;
Article X, Section 3; and Article XVII, Section 2. May I request
that he explicit provisions of these three articles and four
sections be made part of my sponsorship speech, Mr.
Speaker.
These constitutional provisions are, however, not self-
executory. There is a need for an implementing law that will
give meaning and substance to the process of initiative and
referendum which are considered valuable adjuncts to
representative democracy. It is needless to state that this bill
when enacted into law will probably open the door to strong
competition of the people, like pressure groups, vested
interests, farmers' group, labor groups, urban dwellers, the
urban poor and the like, with Congress in the field of
legislation.
Such probability, however, pales in significance when we
consider that through this bill we can hasten the politization of
the Filipino which in turn will aid government in forming an
enlightened public opinion, and hopefully produce better and
more responsive and acceptable legislations.
Furthermore, Mr. Speaker, this would give the
parliamentarians of the streets and cause-oriented groups an
opportunity to articulate their ideas in a truly democratic
forum, thus, the competition which they will offer to Congress
will hopefully be a healthy one. Anyway, in an atmosphere of
competition there are common interests dear to all Filipinos,
and the pursuit of each side's competitive goals can still take
place in an atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished
Gentleman from Camarines Sur and this Representation filed
our respective versions of the bill in 1987, we were hoping
that the bill would be approved early enough so that our
people could immediately use the agrarian reform bill as an
initial subject matter or as a take-off point.
However, in view of the very heavy agenda of the Committee
on Local Government, it took sometime before the committee
could act on these. But as they say in Tagalog, huli man daw
at magaling ay naihahabol din. The passage of this bill
therefore, my dear colleagues, could be one of our finest
hours when we can set aside our personal and political
consideration for the greater good of our people. I therefore
respectfully urge and plead that this bill be immediately
approved.
363
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the
"[c]ourts have the duty to interpret the law as legislated and when
possible, to honor the clear meaning of statutes as revealed by its
language, purpose and history."43
The tragedy is that while conceding this intent, the six (6) justices,
nevertheless, ruled that "x x x R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned" for the
following reasons: (1) Section 2 of the Act does not suggest an
initiative on amendments to the Constitution; (2) the Act does not
provide for the contents of the petition for initiative on the
Constitution; and (3) 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.
To say the least, these alleged omissions are too weak a reason to
throttle the right of the sovereign people to amend the Constitution
through initiative. R.A. 6735 clearly expressed the legislative
policy for the people to propose amendments to the Constitution by
direct action. The fact that the legislature may have omitted certain
details in implementing the people's initiative in R.A. 6735, does not
justify the conclusion that, ergo, the law is insufficient. What
were omitted were mere details and not fundamental
policies which Congress alone can and has
determined. Implementing details of a law can be delegated to the
COMELEC and can be the subject of its rule-making power. Under
Section 2(1), Article IX-C of the Constitution, the COMELEC has the
power to enforce and administer all laws and regulations relative to
the conduct of initiatives. Its rule-making power has long been
recognized by this Court. In ruling R.A. 6735 insufficient but without
striking it down as unconstitutional, the six (6) justices failed to give
due recognition to the indefeasible right of the sovereign people to
amend the Constitution.
IV
 The proposed constitutional changes, albeit substantial,
are mere amendments and can be undertaken through
people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of
the 1987 Constitution, only allow the use of people's initiative to
amend and not to revise the Constitution. They theorize that the
changes proposed by petitioners are substantial and thus constitute
a revision which cannot be done through people's initiative.
In support of the thesis that the Constitution bars the people from
proposing substantial amendments amounting to revision, the
oppositors-intervenors cite the following deliberations during the
Constitutional Commission, viz:44
MR. SUAREZ: x x x x 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 revision of the entire Constitution, so we removed it from
the operation of Section 1 of the proposed Article on
Amendment or Revision.
xxxxxxxxxxxx
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.
364
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.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused
the same view:45
MR. DAVIDE. x x x x We are limiting the right of the people,
by initiative, to submit a proposal for amendment only, not for
revision, only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendment." Does
it 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."
Commissioner (now a distinguished Associate Justice of this Court)
Adolfo S. Azcuna also clarified this point46 -
MR. OPLE. To more closely reflect the intent of Section 2,
may I suggest that we add to "Amendments" "OR
REVISIONS OF" to read: "Amendments OR REVISION OF
this Constitution."
MR. AZCUNA. I think it was not allowed to revise the
Constitution by initiative.
MR. OPLE. How is that again?
 MR. AZCUNA. It was not our intention to allow a revision of Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department), IX
the Constitution by initiative but merely by amendments. (Constitutional Commissions), X (Local Government), XI
(Accountability of Public Officers), XII (National Economy and
MR. BENGZON. Only by amendments. Patrimony), XIII (Social Justice and Human Rights), XIV (Education,
Science and Technology, Arts, Culture, and Sports), XV (The Family),
MR. AZCUNA. I remember that was taken on the floor. XVI (General Provisions), and even XVII (Amendments or Revisions).
In fine, we stand on unsafe ground if we use simple arithmetic to
determine whether the proposed changes are "simple" or
MR. RODRIGO. Yes, just amendments.
"substantial."
The oppositors-intervenors then point out that by their proposals,
Nor can this Court be surefooted if it applies the qualitative
petitioners will "change the very system of government from
test to determine whether the said changes
presidential to parliamentary, and the form of the legislature from
are "simple" or "substantial" as to amount to a revision of the
bicameral to unicameral," among others. They allegedly seek other
Constitution. The well-regarded political scientist, Garner, says that a
major revisions like the inclusion of a minimum number of inhabitants
good constitution should contain at least three (3) sets of provisions:
per district, a change in the period for a term of a Member of
the constitution of liberty which sets forth the fundamental rights of
Parliament, the removal of the limits on the number of terms, the
the people and imposes certain limitations on the powers of the
election of a Prime Minister who shall exercise the executive power,
government as a means of securing the enjoyment of these rights;
and so on and so forth.47 In sum, oppositors-intervenors submit that
the constitution of government which deals with the framework of
"the proposed changes to the Constitution effect major changes in the
government and its powers, laying down certain rules for its
political structure and system, the fundamental powers and duties of
administration and defining the electorate; and, the constitution of
the branches of the government, the political rights of the people, and
sovereignty which prescribes the mode or procedure for amending
the modes by which political rights may be exercised."48 They
or revising the constitution.49 It is plain that the proposed changes
conclude that they are substantial amendments which cannot be
will basically affect only the constitution of government. The
done through people's initiative. In other words, they posit the thesis
constitutions of liberty and sovereignty remain unaffected. Indeed,
that only simple but not substantial amendments can be done
the proposed changes will not change the fundamental nature of
through people's initiative.
our state as "x x x a democratic and republican state."50 It is self-
evident that a unicameral-parliamentary form of government will not
With due respect, I disagree. To start with, the words "simple" and make our State any less democratic or any less republican in
"substantial" are not subject to any accurate quantitative or character. Hence, neither will the use of the qualitative test resolve
qualitative test. Obviously, relying on the quantitative test, the issue of whether the proposed changes are "simple" or
oppositors-intervenors assert that the amendments will result in some "substantial."
one hundred (100) changes in the Constitution. Using the same test,
however, it is also arguable that petitioners seek to change basically
For this reason and more, our Constitutions did not adopt any
only two (2) out of the eighteen (18) articles of the 1987
quantitative or qualitative test to determine whether an
Constitution, i.e. Article VI (Legislative Department) and Article VII
"amendment" is "simple" or "substantial." Nor did they provide
(Executive Department), together with the complementary provisions
that "substantial" amendments are beyond the power of the
for a smooth transition from a presidential bicameral system to a
people to propose to change the Constitution. Instead,
parliamentary unicameral structure. The big bulk of the 1987
our Constitutions carried the traditional distinction between
Constitution will not be affected including Articles I (National
"amendment" and "revision," i.e., "amendment" means
Territory), II (Declaration of Principles and State Policies), III (Bill of
change, including complex changes while "revision"

365
means complete change, including the adoption of an entirely new
covenant. The legal dictionaries express this traditional difference
between "amendment" and "revision." Black's Law
Dictionary defines "amendment" as "[a] formal revision or addition
proposed or made to a statute, constitution, pleading, order, or other
instrument; specifically, a change made by addition, deletion, or
correction."51 Black's also refers to "amendment" as "the process of
making such a revision."52 Revision, on the other hand, is defined as
"[a] reexamination or careful review for correction or
improvement."53 In parliamentary law, it is described as "[a] general
and thorough rewriting of a governing document, in which the entire
document is open to amendment."54 Similarly, Ballentine's Law
Dictionary defines "amendment" – as "[a] correction or revision of a
writing to correct errors or better to state its intended purpose"55 and
"amendment of constitution" as "[a] process of proposing, passing,
and ratifying amendments to the x x x constitution."56 In
contrast, "revision," when applied to a statute (or constitution),
"contemplates the re-examination of the same subject matter
contained in the statute (or constitution), and the substitution of a
new, and what is believed to be, a still more perfect rule."57
One of the most authoritative constitutionalists of his time to whom
we owe a lot of intellectual debt, Dean Vicente G. Sinco, of the
University of the Philippines College of Law, (later President of the
U.P. and delegate to the Constitutional Convention of 1971) similarly
spelled out the difference between "amendment" and "revision." He
opined: "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."58
Our people were guided by this traditional distinction when they
effected changes in our 1935 and 1973 Constitutions. In 1940, the
changes to the 1935 Constitution which included the conversion
from a unicameral system to a bicameral structure, the shortening
of the tenure of the President and Vice-President from a six-year term
without reelection to a four-year term with one reelection, and the
establishment of the COMELEC, together with the complementary
constitutional provisions to effect the changes, were considered
amendments only, not a revision.
366
The replacement of the 1935 Constitution by the 1973
Constitution was, however, considered a revision since the 1973
Constitution was "a completely new fundamental charter embodying
new political, social and economic concepts."59 Among those adopted
under the 1973 Constitution were: the parliamentary system in place
of the presidential system, with the leadership in legislation and
administration vested with the Prime Minister and his Cabinet; the
reversion to a single-chambered lawmaking body instead of the two-
chambered, which would be more suitable to a parliamentary system
of government; the enfranchisement of the youth beginning eighteen
(18) years of age instead of twenty-one (21), and the abolition of
literacy, property, and other substantial requirements to widen the
basis for the electorate and expand democracy; the strengthening of
the judiciary, the civil service system, and the Commission on
Elections; the complete nationalization of the ownership and
management of mass media; the giving of control to Philippine
citizens of all telecommunications; the prohibition against alien
individuals to own educational institutions, and the strengthening of
the government as a whole to improve the conditions of the masses.60
The 1973 Constitution in turn underwent a series of significant
changes in 1976, 1980, 1981, and 1984. The two significant
innovations introduced in 1976 were (1) the creation of
an interim Batasang Pambansa, in place of the interim National
Assembly, and (2) Amendment No. 6 which conferred on the
President the power to issue decrees, orders, or letters of instruction,
whenever the Batasang Pambansa fails to act adequately on any
matter for any reason that in his judgment requires immediate action,
or there is grave emergency or threat or imminence thereof, with such
decrees, or letters of instruction to form part of the law of the land.
In 1980, the retirement age of seventy (70) for justices and judges
was restored. In 1981, the presidential system with parliamentary
features was installed. The transfer of private land for use as
residence to natural-born citizens who had lost their citizenship was
also allowed. Then, in 1984, the membership of the Batasang
Pambansa was reapportioned by provinces, cities, or districts in
Metro Manila instead of by regions; the Office of the Vice-President
was created while the executive committee was abolished; and,
urban land reform and social housing programs were
strengthened.61 These substantial changes were simply
considered as mere amendments.
In 1986, Mrs. Corazon C. Aquino assumed the presidency, and
repudiated the 1973 Constitution. She governed under Proclamation
No. 3, known as the Freedom Constitution.
In February 1987, the new constitution was ratified by the people in
a plebiscite and superseded the Provisional or Freedom Constitution.
Retired Justice Isagani Cruz underscored the outstanding features of
the 1987 Constitution which consists of eighteen articles and is
excessively long compared to the Constitutions of 1935 and 1973, on
which it was largely based. Many of the original provisions of the
1935 Constitution, particularly those pertaining to the legislative and
executive departments, have been restored because of the revival of
the bicameral Congress of the Philippines and the strictly presidential
system. The independence of the judiciary has been strengthened,
with new provisions for appointment thereto and an increase in its
authority, which now covers even political questions formerly beyond
its jurisdiction. While many provisions of the 1973 Constitution were
retained, like those on the Constitutional Commissions and local
governments, still the new 1987 Constitution was deemed as a
revision of the 1973 Constitution.
It is now contended that this traditional distinction between
amendment and revision was abrogated by the 1987 Constitution. It
is urged that Section 1 of Article XVII gives the power to amend or
revise to Congress acting as a constituent assembly, and to a
Constitutional Convention duly called by Congress for the purpose.
Section 2 of the same Article, it is said, limited the people's right to
change the Constitution via initiative through simple amendments.
In other words, the people cannot propose substantial
amendments amounting to revision.
With due respect, I do not agree. As aforestated, the oppositors-
intervenors who peddle the above proposition rely on the opinions of
some Commissioners expressed in the course of the debate on how
to frame the amendment/revision provisions of the 1987 Constitution.
It is familiar learning, however, that opinions in a constitutional
convention, especially if inconclusive of an issue, are of very
limited value as explaining doubtful phrases, and are an unsafe
guide (to the intent of the people) since the constitution derives its
force as a fundamental law, not from the action of the convention but
from the powers (of the people) who have ratified and adopted
367
it.62 "Debates in the constitutional convention 'are of value as showing
the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of
fundamental law.'"63 Indeed, a careful perusal of the debates of the
Constitutional Commissioners can likewise lead to the
conclusion that there was no abandonment of the traditional
distinction between "amendment" and "revision." For during the
debates, some of the commissioners referred to the concurring
opinion of former Justice Felix Q. Antonio in Javellana v. The
Executive Secretary,64 that stressed the traditional distinction
between amendment and revision, thus:65
MR. SUAREZ: 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,66 wherein
he made the following distinction between "amendment" 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.
To further explain "revision," former Justice Antonio, in his concurring
opinion, used an analogy – "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 material 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."67
Hence, it is arguable that when the framers of the 1987 Constitution
used the word "revision," they had in mind the "rewriting of the
whole Constitution," or the "total overhaul of the
Constitution." Anything less is an "amendment" or just "a change of
specific provisions only," the intention being "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." Under this view,
"substantial" amendments are still "amendments" and thus can be
proposed by the people via an initiative.
As we cannot be guided with certainty by the inconclusive
opinions of the Commissioners on the difference between "simple"
and "substantial" amendments or whether "substantial" amendments
amounting to revision are covered by people's initiative, it behooves
us to follow the cardinal rule in interpreting Constitutions, i.e.,
construe them to give effect to the intention of the people who
adopted it. The illustrious Cooley explains its rationale well, viz:68
x x x the constitution does not derive its force from the
convention which framed, but from the people who ratified it,
the intent to be arrived at is that of the people, and it is not to
be supposed that they have looked for any dark or abstruse
meaning in the words employed, but rather that they have
accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that
that was the sense designed to be conveyed. These
proceedings therefore are less conclusive of the proper
construction of the instrument than are legislative proceedings
368
of the proper construction of a statute; since in the latter case
it is the intent of the legislature we seek, while in the former
we are endeavoring to arrive at the intent of the people
through the discussion and deliberations of their
representatives. The history of the calling of the convention,
the causes which led to it, and the discussions and issues
before the people at the time of the election of the delegates,
will sometimes be quite as instructive and satisfactory as
anything to be gathered form the proceedings of the
convention.
Corollarily, a constitution is not to be interpreted on narrow or
technical principles, but liberally and on broad general lines, to
accomplish the object of its establishment and carry out the
great principles of government – not to defeat them.69 One of
these great principles is the sovereignty of the people.
Let us now determine the intent of the people when they adopted
initiative as a mode to amend the 1987 Constitution. We start with the
Declaration of Principles and State Policies which Sinco describes as
"the basic political creed of the nation"70 as it "lays down the policies
that government is bound to observe."71 Section 1, Article II of the
1935 Constitution and Section 1, Article II of the 1973
Constitution, similarly provide that "the Philippines is a republican
state. Sovereignty resides in the people and all government authority
emanates from them." In a republican state, the power of the
sovereign people is exercised and delegated to their
representatives. Thus in Metropolitan Transportation Service v.
Paredes, this Court held that "a republican state, like the Philippines x
x x (is) derived from the will of the people themselves in freely
creating a government 'of the people, by the people, and for the
people' – a representative government through which they have
agreed to exercise the powers and discharge the duties of their
sovereignty for the common good and general welfare."72
In both the 1935 and 1973 Constitutions, the sovereign people
delegated to Congress or to a convention, the power to amend or
revise our fundamental law. History informs us how this delegated
power to amend or revise the Constitution was abused
particularly during the Marcos regime. The Constitution was
changed several times to satisfy the power requirements of the
regime. Indeed, Amendment No. 6 was passed giving
unprecedented legislative powers to then President Ferdinand E.
Marcos. A conspiracy of circumstances from above and below,
however, brought down the Marcos regime through an extra
constitutional revolution, albeit a peaceful one by the people. A
main reason for the people's revolution was the failure of the
representatives of the people to effectuate timely changes in the
Constitution either by acting as a constituent assembly or by
calling a constitutional convention. When the representatives of
the people defaulted in using this last peaceful process of
constitutional change, the sovereign people themselves took
matters in their own hands. They revolted and replaced the 1973
Constitution with the 1987 Constitution.
It is significant to note that the people modified the ideology of
the 1987 Constitution as it stressed the power of the people to
act directly in their capacity as sovereign people.
Correspondingly, the power of the legislators to act as
representatives of the people in the matter of amending or
revising the Constitution was diminished for the spring cannot
The following exchange between Commissioners Rene V. Sarmiento
rise above its source. To reflect this significant shift, Section 1,
and Adolfo S. Azcuna is of the same import:75
Article II of the 1987 Constitution was reworded. It now reads: "the
Philippines is a democratic and republican state. Sovereignty
resides in the people and all government authority emanates from
them." The commissioners of the 1986 Constitutional Commission
explained the addition of the word "democratic," in our first
Declaration of Principles, viz:
MR. NOLLEDO. I am putting the word "democratic" because of the
provisions that we are now adopting which are covering consultations
with the people. For example, we have provisions on recall, initiative,
the right of the people even to participate in lawmaking and other
instances that recognize the validity of interference by the people
through people's organizations x x x x73
MR. OPLE. x x x x The Committee added the word
"democratic" to "republican," and, therefore, the first sentence
states: "The Philippines is a republican and democratic state
xxxx
369
May I know from the committee the reason for adding the
word "democratic" to "republican"? The constitutional framers
of the 1935 and 1973 Constitutions were content with
"republican." Was this done merely for the sake of emphasis?
MR. NOLLEDO. x x x x "democratic" was added because
of the need to emphasize people power and the many
provisions in the Constitution that we have approved
related to recall, people's organizations, initiative and the
like, which recognize the participation of the people in
policy-making in certain circumstances x x x x
MR. OPLE. I thank the Commissioner. That is a very clear
answer and I think it does meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario Braid,
"democracy" here is understood as participatory
democracy. 74 (emphasis supplied)
MR. SARMIENTO. When we speak of republican democratic
state, are we referring to representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old
formulation under the 1973 and 1935 Constitutions which
used the words "republican state" because "republican state"
would refer to a democratic state where people choose their
representatives?
MR. AZCUNA. We wanted to emphasize the participation of
the people in government.
MR. SARMIENTO. But even in the concept "republican state,"
we are stressing the participation of the people x x x x So the
word "republican" will suffice to cover popular representation.
 MR. AZCUNA. Yes, the Commissioner is right. However, the
committee felt that in view of the introduction of the aspects
of direct democracy such as initiative, referendum or recall,
it was necessary to emphasize the democratic portion of
republicanism, of representative democracy as well. So, we
want to add the word "democratic" to emphasize that in
this new Constitution there are instances where the
people would act directly, and not through their
representatives. (emphasis supplied)
Consistent with the stress on direct democracy, the systems of
initiative, referendum, and recall were enthroned as polestars in the
1987 Constitution. Thus, Commissioner Blas F. Ople who
introduced the provision on people's initiative said:76
MR. OPLE. x x x x I think this is just the correct time in history
when we should introduce an innovative mode of proposing
amendments to the Constitution, vesting in the people and
their organizations the right to formulate and propose their
own amendments and revisions of the Constitution in a
manner that will be binding upon the government. It is not that
I believe this kind of direct action by the people for amending
a constitution will be needed frequently in the future, but it is
good to know that the ultimate reserves of sovereign
power still rest upon the people and that in the exercise
of that power, they can propose amendments or revision
to the Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's initiative
as a safety valve, as a peaceful way for the people to change their
Constitution, by citing our experiences under the Marcos
government, viz:77
MR. SUAREZ. We agree to the difficulty in implementing this
particular provision, but we are providing a channel for the
expression of the sovereign will of the people through this
initiative system.
370
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not
sufficient channel for expression of the will of the people,
particularly in the amendment or revision of the Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we
know what happened during the 20 years under the
Marcos administration. So, if the National Assembly, in a
manner of speaking, is operating under the thumb of the
Prime Minister or the President as the case may be, and the
required number of votes could not be obtained, we would
have to provide for a safety valve in order that the people
could ventilate in a very peaceful way their desire for
amendment to the Constitution.
It is very possible that although the people may be
pressuring the National Assembly to constitute itself as a
constituent assembly or to call a constitutional
convention, the members thereof would not heed the
people's desire and clamor. So this is a third avenue that
we are providing for the implementation of what is now
popularly known as people's power. (emphasis supplied)
Commissioner Regalado E. Maambong opined that the people's
initiative could avert a revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the
Constitution could actually avert a revolution by providing a
safety valve in bringing about changes in the Constitution
through pacific means. This, in effect, operationalizes what
political law authors call the "prescription of sovereignty."
(emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution
which expressed the right of the sovereign people to propose
amendments to the Constitution by direct action or through initiative.
To that extent, the delegated power of Congress to amend or
revise the Constitution has to be adjusted downward. Thus,
Section 1, Article VI of the 1987 Constitution has to be reminted and
now provides: "The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum."
Prescinding from these baseline premises, the argument that the
people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty on its
head. At the very least, the submission constricts the democratic
space for the exercise of the direct sovereignty of the people. It also
denigrates the sovereign people who they claim can only be trusted
with the power to propose "simple" but not
"substantial" amendments to the Constitution. According to Sinco,
the concept of sovereignty should be strictly understood in its legal
meaning as it was originally developed in law.79 Legal sovereignty, he
explained, is "the possession of unlimited power to make laws. Its
possessor is the legal sovereign. It implies the absence of any other
party endowed with legally superior powers and privileges. It is not
subject to law 'for it is the author and source of law.' Legal
sovereignty is thus the equivalent of legal omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the
supremacy of the people's will over the state which they themselves
have created. The state is created by and subject to the will of the
people, who are the source of all political power. Rightly, we have
ruled that "the sovereignty of our people is not a kabalistic principle
whose dimensions are buried in mysticism. Its metes and bounds are
familiar to the framers of our Constitutions. They knew that in its
broadest sense, sovereignty is meant to be supreme, the jus summi
imperu, the absolute right to govern."81
James Wilson, regarded by many as the most brilliant, scholarly,
and visionary lawyer in the United States in the 1780s, laid down the
first principles of popular sovereignty during the Pennsylvania
ratifying convention of the 1787 Constitution of the United States:82
There necessarily exists, in every government, a power from
which there is no appeal, and which, for that reason, may be
termed supreme, absolute, and uncontrollable.
x x x x Perhaps some politician, who has not considered with
sufficient accuracy our political systems, would answer that, in
371
our governments, the supreme power was vested in the
constitutions x x x x This opinion approaches a step nearer to
the truth, but does not reach it. The truth is, that in our
governments, the supreme, absolute, and uncontrollable
power remains in the people. As our constitutions are
superior to our legislatures, so the people are superior to our
constitutions. Indeed the superiority, in this last instance, is
much greater; for the people possess over our constitution,
control in act, as well as right. (emphasis supplied)
I wish to reiterate that in a democratic and republican state, only
the people is sovereign - - - not the elected President, not the
elected Congress, not this unelected Court. Indeed, the sovereignty
of the people which is indivisible cannot be reposed in any organ of
government. Only its exercise may be delegated to any of
them. In our case, the people delegated to Congress the exercise
of the sovereign power to amend or revise the Constitution. If
Congress, as delegate, can exercise this power to amend or revise
the Constitution, can it be argued that the sovereign people who
delegated the power has no power to substantially amend the
Constitution by direct action? If the sovereign people do not have this
power to make substantial amendments to the Constitution, what did
it delegate to Congress? How can the people lack this fraction of a
power to substantially amend the Constitution when by their
sovereignty, all power emanates from them? It will take
some mumbo jumbo to argue that the whole is lesser than its part.
Let Sinco clinch the point:83
But although possession may not be delegated, the exercise
of sovereignty often is. It is delegated to the organs and
agents of the state which constitute its government, for it is
only through this instrumentality that the state ordinarily
functions. However ample and complete this delegation
may be, it is nevertheless subject to withdrawal at any
time by the state. On this point Willoughby says:
Thus, States may concede to colonies almost
complete autonomy of government and reserve to
themselves a right to control of so slight and so
negative a character as to make its exercise a rare
and improbable occurrence; yet so long as such right
 of control is recognized to exist, and the autonomy of
the colonies is conceded to be founded upon a grant
and continuing consent of the mother countries the
sovereignty of those mother countries over them is
complete and they are to be considered as
possessing only administrative autonomy and not
political independence.
At the very least, the power to propose substantial amendments
to the Constitution is shared with the people. We should accord
the most benign treatment to the sovereign power of the people
to propose substantial amendments to the Constitution
especially when the proposed amendments will adversely affect
the interest of some members of Congress. A contrary approach
will suborn the public weal to private interest and worse, will
enable Congress (the delegate) to frustrate the power of the
people to determine their destiny (the principal).
All told, the teaching of the ages is that constitutional clauses
acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly
construed to maintain maximum power in the people.85 We followed
this orientation in Subic Bay Metropolitan Authority v. Commission on
Elections.86 There is not an iota of reason to depart from it.
V the President's authority to propose amendments and the
The issues at bar are not political questions.
Petitioners submit that "[t]he 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 which is beyond even the very long arm of this Honorable
Court's power of judicial review. Whether or not the 1987 Constitution
should be amended is a matter which the people and the people
alone must resolve in their sovereign capacity."87 They argue that
"[t]he power to propose amendments to the Constitution is a right
explicitly bestowed upon the sovereign people. Hence, the
372
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.'"88
The petitioners cannot be sustained. This issue has long been
interred by Sanidad v. Commission on Elections, viz:89
Political questions are neatly associated with the wisdom, not
the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the contested
act, that matter is definitely justiciable or non-political. What is
in the heels of the Court is not the wisdom of the act of the
incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such
act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that
power to propose amendments is therefore a downright
justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen.
If the Constitution provides how it may be amended, the
judiciary as the interpreter of that Constitution, can declare
whether the procedure followed or the authority assumed was
valid or not.
We cannot accept the view of the Solicitor General, in
pursuing his theory of non-justiciability, that the question of
regularity of the procedure adopted for submission of the
proposals to the people ultimately lie in the judgment of the
latter. A clear Descartes fallacy of vicious cycle. Is it not that
the people themselves, by their sovereign act, provided for
the authority and procedure for the amending process when
they ratified the present Constitution in 1973? Whether,
therefore, that constitutional provision has been followed or
not is indisputably a proper subject of inquiry, not by the
people themselves – of course – who exercise no power of
judicial review, but by the Supreme Court in whom the people
themselves vested that power, a power which includes the
competence to determine whether the constitutional norms for
amendments have been observed or not. And, this inquiry
 must be done a priori not a posteriori, i.e., before the
submission to and ratification by the people.
In the instant case, the Constitution sets in black and white the
requirements for the exercise of the people's initiative to amend the
Constitution. The amendments must be proposed by the people
"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."90Compliance with these
requirements is clearly a justiciable and not a political question. Be
that as it may, how the issue will be resolved by the people is
addressed to them and to them alone.
VI
Whether the Petition for Initiative filed before the COMELEC
complied with Section 2, Article XVII of the Constitution and R.A.
6735 involves contentious issues of fact which should first be
resolved by the COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it allegedly
lacks the required number of signatures under Section 2, Article XVII
of the Constitution. Said provision requires that the petition for
initiative be supported by at least twelve per cent (12%) of the total
number of registered voters, of which every legislative district must be
represented by at least three per cent (3%) of the registered voters
therein. Oppositors-intervenors contend that no proper verification
of signatures was done in several legislative districts. They assert
that mere verification of the names listed on the signature sheets
without verifying the signatures reduces the signatures submitted for
their respective legislative districts to mere scribbles on a piece of
paper.
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a
certification dated August 23, 2006 issued by Atty. Marlon S.
Casquejo, Election Officer IV, Third District and OIC, First and
Second District, Davao City, stating that his office has not verified the
373
signatures submitted by the proponents of the people's initiative. The
certification reads:
This is to CERTIFY that this office (First, Second and Third
District, Davao City) HAS NOT VERIFIED the signatures of
registered voters as per documents submitted in this office by
the proponents of the People's Initiative. Consequently, NO
ELECTION DOCUMENTS AND/OR ORDER ISSUED BY
HIGHER SUPERIORSused as basis for such verification of
signatures.91
Senate Minority Leader Aquilino Pimentel, Jr., among others, further
clarified that although Atty. Casquejo and Reynne Joy B. Bullecer,
Acting Election Officer IV, First District, Davao City, later issued
certifications stating that the Office of the City Election Officer has
examined the list of individuals appearing in the signature
sheets,92 the certifications reveal that the office had verified only the
names of the signatories, but not their signatures. Oppositors-
intervenors submit that not only the names of the signatories should
be verified, but also their signatures to ensure the identities of the
persons affixing their signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners
failed to obtain the signatures of at least three per cent (3%) of the
total number of registered voters in the First Legislative District of
South Cotabato. For the First District of South Cotabato, petitioners
submitted 3,182 signatures for General Santos City, 2,186 signatures
for Tupi, 3,308 signatures for Tampakan and 10,301 signatures for
Polomolok, or 18,977 signatures out of 359,488 registered voters of
said district. Antonino, however, submitted to this Court a copy of the
certification by Glory D. Rubio, Election Officer III, Polomolok, dated
May 8, 2006, showing that the signatures from Polomolok were not
verified because the Book of Voters for the whole municipality was in
the custody of the Clerk of Court of the Regional Trial Court, Branch
38, Polomolok, South Cotabato.93 Excluding the signatures from
Polomolok from the total number of signatures from the First District
of South Cotabato would yield only a total of 8,676 signatures which
falls short of the three per cent (3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang
Pilipino likewise submitted to this Court a certification issued by Atty.
Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City,
stating that the list of names appearing on the signature sheets
corresponds to the names of registered voters in the city, thereby
implying that they have not actually verified the signatures.94
The argument against the sufficiency of the signatures is further
bolstered by Alternative Law Groups, Inc., which submitted copies of
similarly worded certifications from the election officers from
Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law
Groups, Inc., further assails the regularity of the verification process
as it alleged that verification in some areas were conducted by
Barangay officials and not by COMELEC election officers. It filed with
this Court copies of certifications from Sulu and Sultan Kudarat
showing that the verification was conducted by local officials instead
of COMELEC personnel.97
Petitioners, on the other hand, maintain that the verification
conducted by the election officers sufficiently complied with the
requirements of the Constitution and the law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of
verification in Davao City and in Polomolok, South Cotabato,
petitioner Aumentado claimed that the same election officers cited by
the oppositors-intervenors also issued certifications showing that they
have verified the signatures submitted by the proponents of the
people's initiative. He presented copies of the certifications issued by
Atty. Marlon S. Casquejo for the Second and Third Legislative
Districts of Davao City stating that he verified the signatures of the
proponents of the people's initiative. His certification for the Second
District states:
This is to CERTIFY that this Office has examined the list of
individuals as appearing in the Signature Sheets of the
Registered Voters of District II, Davao City, submitted on April
7, 2006 by MR. NONATO BOLOS, Punong Barangay, Centro,
Davao City for verification which consists of THIRTY
THOUSAND SIX HUNDRED SIXTY-TWO (30,662)
signatures.
374
Anent thereto, it appears that of the THIRTY THOUSAND SIX
HUNDRED SIXTY-TWO (30,662) individuals, only TWENTY-
TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668)
individuals were found to be REGISTERED VOTERS, in the
Computerized List of Voters of SECOND CONGRESSIONAL
DISTRICT, DAVAO CITY.98
It was also shown that Atty. Casquejo had issued a clarificatory
certification regarding the verification process conducted in Davao
City. It reads:
Regarding the verification of the signatures of registered
voters, this Office has previously issued two (2) separate
certifications for the 2nd and 3rd Districts of Davao City on April
20, 2006 and April 26, 2006, respectively, specifically relating
to the voters who supported the people's initiative. It was
stated therein that the names submitted, comprising 22,668
individual voters in the 2nd District and 18,469 individual voters
in the 3rd District, were found [to] be registered voters of the
respective districts mentioned as verified by this Office based
on the Computerized List of Voters.
It must be clarified that the August 23, 2006 Certification was
issued in error and by mistake for the reason that the
signature verification has not been fully completed as of that
date.
I hereby CERTIFY that this Office has examined the
signatures of the voters as appearing in the signature sheets
and has compared these with the signatures appearing in the
book of voters and computerized list of voters x x x 99
Petitioner Aumentado also submitted a copy of the certification dated
May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to
support their claim that said officer had conducted a verification of
signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered voters
of this municipality, as of the May 10, 2004 elections, 10,804
names with signatures were submitted for verification and out
 of which 10,301 were found to be legitimate voters as per
official list of registered voters, which is equivalent to 15.07%
of the total number of registered voters of this Municipality.100
In addition to the lack of proper verification of the signatures in
numerous legislative districts, allegations of fraud and irregularities in
the collection of signatures in Makati City were cited by Senator
Pimentel, among others, to wit:
(1) No notice was given to the public, for the benefit of those
who may be concerned, by the Makati COMELEC Office that
signature sheets have already been submitted to it for
"verification." The camp of Mayor Binay was able to witness
the "verification process" only because of their pro-active
stance;
(2) In District 1, the proponents of charter change submitted
43,405 signatures for verification. 36,219 alleged voters'
signatures (83% of the number of signatures submitted) were
rejected outright. 7,186 signatures allegedly "passed"
COMELEC's initial scrutiny. However, upon examination of
the signature sheets by Atty. Mar-len Abigail Binay, the said
7,186 signatures could not be accounted for. Atty. Binay
manually counted 2,793 signatures marked with the word
"OK" and 3,443 signatures marked with a check, giving only
6,236 "apparently verified signatures." Before the COMELEC
officer issued the Certification, Atty. Binay already submitted
to the said office not less than 55 letters of "signature
withdrawal," but no action was ever taken thereon;
(3) In District 2, 29,411 signatures were submitted for
verification. 23,521 alleged voters' signatures (80% of those
submitted) were rejected outright. Of the 5,890 signatures
which allegedly passed the COMELEC's initial scrutiny, some
more will surely fail upon closer examination;
(4) In the absence of clear, transparent, and uniform rules the
COMELEC personnel did not know how to treat the objections
and other observations coming from the camp of Mayor
Binay. The oppositors too did not know where to go for their
375
remedy when the COMELEC personnel merely "listened" to
their objections and other observations. As mentioned earlier,
the COMELEC personnel did not even know what to do with
the many "letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and
other forgeries appear on the Sigaw ng Bayan Signature
Sheets. There is even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one
person;
(7) A Calara M. Roberto and a Roberto M. Calara both
allegedly signed the Signature Sheets.101
Also, there are allegations that many of the signatories did not
understand what they have signed as they were merely misled into
signing the signature sheets. Opposed to these allegations are
rulings that a person who affixes his signature on a document raises
the presumption that the person so signing has knowledge of what
the document contains. Courts have recognized that there is great
value in the stability of records, so to speak, that no one should
commit herself or himself to something in writing unless she or he is
fully aware and cognizant of the effect it may have upon her on
him.102 In the same vein, we have held that a person is presumed to
have knowledge of the contents of a document he has signed.103 But
as this Court is not a trier of facts, it cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the
constitutional requirement that the petition for initiative be signed by
at least twelve per cent (12%) of the total number of registered
voters, of which every legislative district must be represented by at
least three per cent (3%) of the registered voters therein, involves
contentious facts. Its resolution will require presentation of
evidence and their calibration by the COMELEC according to its
rules. During the oral argument on this case, the COMELEC, through
Director Alioden Dalaig of its Law Department, admitted that it has
not examined the documents submitted by the petitioners in support
of the petition for initiative, as well as the documents filed by the
oppositors to buttress their claim that the required number of
signatures has not been met. The exchanges during the oral
argument likewise clearly show the need for further clarification and
presentation of evidence to prove certain material facts.104
The only basis used by the COMELEC to dismiss the petition for
initiative was this Court's ruling in Santiago v. COMELEC that R.A.
6735 was insufficient. It has yet to rule on the sufficiency of the
form and substance of the petition. I respectfully submit that
this issue should be properly litigated before the
COMELEC where both parties will be given full opportunity to prove
their allegations.
For the same reasons, the sufficiency of the Petition for Initiative
and its compliance with the requirements of R.A. 6735 on
initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance, as it is the body that
is mandated by the Constitution to administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum
and recall.105
VII
COMELEC gravely abused its discretion when it denied
due course to the Lambino and Aumentado petition.
In denying due course to the Lambino and Aumentado petition,
COMELEC relied on this Court's ruling in Santiagopermanently
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.
Again, I respectfully submit that COMELEC's reliance
on Santiago constitutes grave abuse of discretion amounting to lack
of jurisdiction. The Santiago case did not establish the firm
doctrine that R.A. 6735 is not a sufficient law to implement the
constitutional provision allowing people's initiative to amend the
Constitution. To recapitulate, the records show that in the original
decision, eight (8) justices106 voted that R.A. 6735 was not a
sufficient law; five (5) justices107 voted that said law was sufficient;
376
and one (1) justice108 abstained from voting on the issue holding that
unless and until a proper initiatory pleading is filed, the said issue is
not ripe for adjudication.109
Within the reglementary period, the respondents filed their motion for
reconsideration. On June 10, 1997, the Court denied the motion. Only
thirteen (13) justices resolved the motion for Justice Torres inhibited
himself.110 Of the original majority of eight (8) justices, only six (6)
reiterated their ruling that R.A. 6735 was an insufficient law.
Justice Hermosisima, originally part of the majority of eight (8)
justices, changed his vote and joined the minority of five (5) justices.
He opined without any equivocation that R.A. 6735 was a sufficient
law, thus:
It is one thing to utter a happy phrase from a protected
cluster; another to think under fire – to think for action upon
which great interests depend." So said Justice Oliver Wendell
Holmes, and so I am guided as I reconsider my concurrence
to the holding of the majority that "R.A. No. 6735 is
inadequate to cover the system of initiative on amendments to
the Constitution and to have failed to provide sufficient
standard for subordinate legislation" and now to interpose my
dissent thereto.
xxx
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately
providing the legal basis for the exercise by the people of
their right to amend the Constitution through initiative
proceedings and to uphold the validity of COMELEC
Resolution No. 2300 insofar as it does not sanction the filing
of the initiatory petition for initiative proceedings to amend the
Constitution without the required names and/or signatures of
at least 12% of all the registered voters, of which every
legislative district must be represented by at least 3% of the
registered voters therein. (emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the sufficiency
of R.A. 6735. In fine, the final vote on whether R.A. 6735 is a
sufficient law was 6-6 with one (1) justice inhibiting himself and
another justice refusing to rule on the ground that the issue was not
ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted that
R.A. 6735 is an insufficient law failed to establish a doctrine that
could serve as a precedent. Under any alchemy of law, a deadlocked
vote of six (6) is not a majority and a non-majority cannot write a rule
with precedential value. The opinion of the late Justice Ricardo J.
Francisco is instructive, viz:
As it stands, of the thirteen justices who took part in the
deliberations on the issue of whether the motion for
reconsideration of the March 19, 1997 decision should be
granted or not, only the following justices sided with Mr.
Justice Davide, namely: Chief Justice Narvasa, and Justices
Regalado, Romero, Bellosillo and Kapunan. Justices Melo,
Puno, Mendoza, Hermosisima, Panganiban and the
undersigned voted to grant the motion; while Justice Vitug
"maintained his opinion that the matter was not ripe for
judicial adjudication." In other words, only five, out of the other
twelve justices, joined Mr. Justice Davide's June 10, 1997
ponencia finding R.A. No. 6735 unconstitutional for its failure
to pass the so called "completeness and sufficiency
standards" tests. The "concurrence of a majority of the
members who actually took part in the deliberations" which
Article VII, Section 4(2) of the Constitution requires to declare
a law unconstitutional was, beyond dispute, not complied
with. And even assuming, for the sake of argument, that the
constitutional requirement on the concurrence of the
"majority" was initially reached in the March 19, 1997
ponencia, the same is inconclusive as it was still open for
review by way of a motion for reconsideration. It was only on
June 10, 1997 that the constitutionality of R.A. No. 6735 was
settled with finality, sans the constitutionally required
"majority." The Court's declaration, therefore, is manifestly
grafted with infirmity and wanting in force necessitating, in my
view, the reexamination of the Court's decision in G.R. No.
127325. It behooves the Court "not to tarry any longer" nor
377
waste this opportunity accorded by this new petition (G.R. No.
129754) to relieve the Court's pronouncement from
constitutional infirmity.
The jurisprudence that an equally divided Court can never set a
precedent is well-settled. Thus, in the United States, an affirmance in
the Federal Supreme Court upon equal division of opinion is not an
authority for the determination of other cases, either in that Court or in
the inferior federal courts. In Neil v. Biggers,111 which was a habeas
corpusstate proceeding by a state prisoner, the U.S. Supreme
Court held that its equally divided affirmance of petitioner's state
court conviction was not an "actual adjudication" barring subsequent
consideration by the district court on habeas corpus. In discussing
the non-binding effect of an equal division ruling, the Court
reviewed the history of cases explicating the disposition "affirmed by
an equally divided Court:"
In this light, we review our cases explicating the disposition
"affirmed by an equally divided Court." On what was
apparently the first occasion of an equal division, The
Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825), the Court
simply affirmed on the point of division without much
discussion. Id., at 126-127. Faced with a similar division
during the next Term, the Court again affirmed, Chief Justice
Marshall explaining that "the principles of law which have
been argued, cannot be settled; but the judgment is affirmed,
the court being divided in opinion upon it." Etting v. Bank of
United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As
was later elaborated in such cases, it is the appellant or
petitioner who asks the Court to overturn a lower court's
decree. "If the judges are divided, the reversal cannot be had,
for no order can be made. The judgment of the court below,
therefore, stands in full force. It is indeed, the settled practice
in such case to enter a judgment of affirmance; but this is only
the most convenient mode of expressing the fact that the
cause is finally disposed of in conformity with the action of the
court below, and that that court can proceed to enforce its
judgment. The legal effect would be the same if the appeal, or
writ of error, were dismissed." Durant v. Essex Co., 7 Wall.
107, 112, 19 L. Ed. 154 (1869). Nor is an affirmance by an
equally divided Court entitled to precedential weight. Ohio ex
 rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464,
4 L. Ed. 2d 1708 (1960).xxx"
This doctrine established in Neil has not been overturned and has
been cited with approval in a number of subsequent cases,112 and
has been applied in various state jurisdictions.
In the case of In the Matter of the Adoption of Erin G., a Minor
Child,113 wherein a putative father sought to set aside a decree
granting petition for adoption of an Indian child on grounds of
noncompliance with the requirements of Indian Child Welfare Act
(ICWA), the Supreme Court of Alaska held that its decision in In re
Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion
supporting holding that an action such as the putative father's
would be governed by the state's one-year statute of limitations, was
not entitled to stare decisis effect. In T.N.F., a majority of the
justices sitting did not agree on a common rationale, as two of
four participating justices agreed that the state's one-year statute of
limitations applied, one justice concurred in the result only, and one
justice dissented. There was no "narrower" reasoning agreed upon by
all three affirming justices. The concurring justice expressed no
opinion on the statute of limitations issue, and in agreeing with the
result, he reasoned that ICWA did not give the plaintiff standing to
sue.115 The two-justice plurality, though agreeing that the state's one-
year statute of limitations applied, specifically disagreed with the
concurring justice on the standing issue.116 Because a majority of the
participating justices in T.N.F. did not agree on any one ground for
affirmance, it was not accorded stare decisis effect by the state
Supreme Court.
The Supreme Court of Michigan likewise ruled that the doctrine of
stare decisis does not apply to plurality decisions in which no
majority of the justices participating agree to the reasoning and as
such are not authoritative interpretations binding on the Supreme
Court.117
In State ex rel. Landis v. Williams,118 the Supreme Court of Florida,
in an equally divided opinion on the matter,119 held that chapter
15938, Acts of 1933 must be allowed to stand, dismissing a quo
warranto suit without prejudice. The Court held:
378
In a cause of original jurisdiction in this court a statute cannot
be declared unconstitutional nor its enforcement nor operation
judicially interfered with, except by the concurrence of a
majority of the members of the Supreme Court sitting in the
cause wherein the constitutionality of the statute is brought in
question or judicial relief sought against its enforcement.
Section 4 of Article 5, state Constitution.
Therefore in this case the concurrence of a majority of the
members of this court in holding unconstitutional said chapter
15938, supra, not having been had, it follows that the statute
in controversy must be allowed to stand and accordingly be
permitted to be enforced as a presumptively valid act of the
Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So.
282. This decision is not to be regarded as a judicial
precedent on the question of constitutional law involved
concerning the constitutionality vel non of chapter
15938. State ex rel. Hampton v. McClung, 47 Fla. 224, 37
So. 51.
Quo warranto proceeding dismissed without prejudice by
equal division of the court on question of constitutionality of
statute involved.
In U.S. v. Pink,120 the Court held that the affirmance by the U.S.
Supreme Court by an equally divided vote of a decision of the New
York Court of Appeals that property of a New York branch of a
Russian insurance company was outside the scope of the Russian
Soviet government's decrees terminating existence of insurance
companies in Russia and seizing their assets, while conclusive and
binding upon the parties as respects the controversy in that
action, did not constitute an authoritative "precedent."
In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals
Second Circuit, in holding that printed lyrics which had the same
meter as plaintiffs' lyrics, but which were in form a parody of the latter,
did not constitute infringement of plaintiffs' copyrights, ruled that the
prior case of Benny v. Loew's, Inc.,122 which was affirmed by an
equally divided court, was not binding upon it, viz:
 Under the precedents of this court, and, as seems justified by
reason as well as by authority, an affirmance by an equally
divided court is as between the parties, a conclusive
determination and adjudication of the matter adjudged; but
the principles of law involved not having been agreed upon by
a majority of the court sitting prevents the case from
becoming an authority for the determination of other cases,
either in this or in inferior courts.123
In Perlman v. First National Bank of Chicago,124 the Supreme
Court of Illinois dismissed the appeal as it was unable to reach a
decision because two judges recused themselves and the remaining
members of the Court were so divided, it was impossible to secure
the concurrence of four judges as is constitutionally required. The
Court followed the procedure employed by the U.S. Supreme Court
when the Justices of that Court are equally divided, i.e. affirm the
judgment of the court that was before it for review. The affirmance is
a conclusive determination and adjudication as between the parties to
the immediate case, it is not authority for the determination of other
cases, either in the Supreme Court or in any other court. It is not
"entitled to precedential weight." The legal effect of such an
affirmance is the same as if the appeal was dismissed.125
The same rule is settled in the English Courts. Under English
precedents,126 an affirmance by an equally divided Court is, as
between the parties, a conclusive determination and adjudication of
the matter adjudged; but the principles of law involved not having
been agreed upon by a majority of the court sitting prevents the case
from becoming an authority for the determination of other cases,
either in that or in inferior courts.
After a tour of these cases, we can safely conclude that the prevailing
doctrine is that, the affirmance by an equally divided court merely
disposes of the present controversy as between the parties and
settles no issue of law; the affirmance leaves unsettled the principle
of law presented by the case and is not entitled to precedential weight
or value. In other words, the decision only has res judicata and not
stare decisis effect. It is not conclusive and binding upon other parties
as respects the controversies in other actions.
379
Let us now examine the patent differences between the petition at
bar and the Delfin Petition in the Santiago case which will prevent
the Santiago ruling from binding the present petitioners. To start with,
the parties are different. More importantly, the Delfin Petition did not
contain the signatures of the required number of registered voters
under the Constitution: the requirement that twelve per cent (12%) of
all the registered voters in the country wherein each legislative district
is represented by at least three per cent (3%) of all the registered
voters therein was not complied with. For this reason, we ruled
unanimously that it was not the initiatory petition which the
COMELEC could properly take cognizance of. In contrast, the
present petition appears to be accompanied by the signatures of the
required number of registered voters. Thus, while the Delfin
Petition prayed that an Order be issued fixing the time and dates for
signature gathering all over the country, the Lambino and Aumentado
petition, prayed for the calling of a plebiscite to allow the Filipino
people to express their sovereign will on the proposition. COMELEC
cannot close its eyes to these material differences.
Plainly, the COMELEC committed grave abuse of discretion
amounting to lack of jurisdiction in denying due course to the
Lambino and Aumentado petition on the basis of its mistaken notion
that Santiago established the doctrine that R.A. 6735 was an
insufficient law. As aforestressed, that ruling of six (6) justices who do
not represent the majority lacks precedential status and is non-
binding on the present petitioners.
The Court's dismissal of the PIRMA petition is of no moment. Suffice
it to say that we dismissed the PIRMA petition on the principle of res
judicata. This was stressed by former Chief Justice Hilario G. Davide
Jr., viz:
The following are my reasons as to why this petition must be
summarily dismissed:
First, it is barred by res judicata. No one aware of the
pleadings filed here and in Santiago v. COMELEC (G.R. No.
127325, 19 March 1997) may plead ignorance of the fact that
the former is substantially identical to the latter, except for the
reversal of the roles played by the principal parties and
inclusion of additional, yet not indispensable, parties in the
 present petition. But plainly, the same issues and reliefs are
raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE
FOR REFORM, MODERNIZATION, AND ACTION (PIRMA)
and spouses ALBERTO PEDROSA and CARMEN
PEDROSA. PIRMA is self-described as "a non-stock, non-
profit organization duly organized and existing under
Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with
"ALBERTO PEDROSA and CARMEN PEDROSA" as among
its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as
alleged in the body of the petition therein, "proposes to
undertake the signature drive for a people's initiative to
amend the Constitution." In Santiago then, the PEDROSAS
were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA
was duly represented at the hearing of the Delfin petition in
the COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding
member of the Movement for People's Initiative, and under
footnote no. 6 of the decision, it was noted that said
movement was "[l]ater identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for brevity." In
their Comment to the petition in Santiago, the PEDROSAS
did not deny that they were founding members of PIRMA, and
by their arguments, demonstrated beyond a shadow of a
doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners
PIRMA and the PEDROSAS, as well as the others joining
them, from the operation of the principle of res judicata, which
needs no further elaboration. (emphasis supplied)
Justice Josue N. Bellosillo adds:
The essential requisites of res judicata are: (1) the former
judgment must be final; (2) it must have been rendered by a
380
court having jurisdiction over the subject matter and the
parties; (3) it must be a judgment on the merits; and (4) there
must be between the first and second actions identity of
parties, identity of subject matter, and identity of causes of
action.127
Applying these principles in the instant case, we hold that all
the elements of res judicata are present. For sure, our
Decision in Santiago v. COMELEC, which was promulgated
on 19 March 1997, and the motions for reconsideration
thereof denied with finality on 10 June 1997, is undoubtedly
final. The said Decision was rendered by this Court which had
jurisdiction over the petition for prohibition under Rule 65. Our
judgment therein was on the merits, i.e., rendered only after
considering the evidence presented by the parties as well as
their arguments in support of their respective claims and
defenses. And, as between Santiago v. COMELEC case and
COMELEC Special Matter No. 97-001 subject of the present
petition, there is identity of parties, subject matter and causes
of action.
Petitioners contend that the parties in Santiago v. COMELEC
are not identical to the parties in the instant case as some of
the petitioners in the latter case were not parties to the former
case. However, a perusal of the records reveals that the
parties in Santiago v. COMELEC included the COMELEC,
Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa,
in their capacities as founding members of PIRMA, as well as
Atty. Pete Quirino-Quadra, another founding member of
PIRMA, representing PIRMA, as respondents. In the instant
case, Atty. Delfin was never removed, and the spouses
Alberto and Carmen Pedrosa were joined by several others
who were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA Petition
was filed by an entirely separate and distinct group by
removing some of the parties involved in Santiago v.
COMELEC and adding new parties. But as we said in
Geralde v. Sabido128-
A party may not evade the application of the rule of
res judicata by simply including additional parties in
 the subsequent case or by not including as parties in
the later case persons who were parties in the
previous suit. The joining of new parties does not
remove the case from the operation of the rule on res
judicata if the party against whom the judgment is
offered in evidence was a party in the first action;
otherwise, the parties might renew the litigation by
simply joining new parties.
The fact that some persons or entities joined as parties in the
PIRMA petition but were not parties in Santiago v. COMELEC
does not affect the operation of the prior judgment against
those parties to the PIRMA Petition who were likewise parties
in Santiago v. COMELEC, as they are bound by such prior
judgment.
Needless to state, the dismissal of the PIRMA petition which was
based on res judicata binds only PIRMA but not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the
great Chief Justice John Marshall of the United States in the 1819
case of M'cCulloch v. Maryland.129 Our Constitution is not a mere
collection of slogans. Every syllable of our Constitution is suffused
with significance and requires our full fealty. Indeed, the rule of law
will wither if we allow the commands of our Constitution to underrule
us.
The first principle enthroned by blood in our Constitution is
the sovereignty of the people. We ought to be concerned with this
first principle, i.e., the inherent right of the sovereign people to decide
whether to amend the Constitution. Stripped of its
abstractions, democracy is all about who has the sovereign right to
make decisions for the people and our Constitution clearly and
categorically says it is no other than the people themselves from
whom all government authority emanates. This right of the people
to make decisions is the essence of sovereignty, and it cannot
381
receive any minimalist interpretation from this Court. If there is
any principle in the Constitution that cannot be diluted and is non-
negotiable, it is this sovereign right of the people to decide.
This Court should always be in lockstep with the people in the
exercise of their sovereignty. Let them who will diminish or destroy
the sovereign right of the people to decide be warned. Let not their
sovereignty be diminished by those who belittle their brains to
comprehend changes in the Constitution as if the people themselves
are not the source and author of our Constitution. Let not their
sovereignty be destroyed by the masters of manipulation who
misrepresent themselves as the spokesmen of the people.
Be it remembered that a petition for people's initiative that complies
with the requirement that it "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" is but the
first step in a long journey towards the amendment of the
Constitution. Lest it be missed, the case at bar involves but
a proposal to amend the Constitution. The proposal will still be
debated by the people and at this time, there is yet no fail-safe
method of telling what will be the result of the debate. There will still
be a last step to the process of amendment which is the ratification
of the proposal by a majority of the people in a plebiscite called for
the purpose. Only when the proposal is approved by a majority of
the people in the plebiscite will it become an amendment to the
Constitution. All the way, we cannot tie the tongues of the
people. It is the people who decide for the people are not an
obscure footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear
them. Let us heed them. Let us not only sing paens to the
people's sovereignty. Yes, it is neither too soon nor too late to
let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the
resolution of the Commission on Elections dated August 31, 2006,
denying due course to the Petition for Initiative filed by Raul L.
Lambino and Erico B. Aumentado in their own behalf and together
with some 6.3 million registered voters who affixed their signatures
thereon and to REMAND the petition at bar to the Commission on
Elections for further proceedings.
REYNATO S. PUNO
Associate 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, Respondent; TRADE UNION
CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT,
ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN
MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND
GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC.,
CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON
III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P.
MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE
QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO
UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE,
GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN,
LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO
PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD
PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA,
ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, 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, SENATE MINORITY LEADER AQUILINO P. PIMENTEL,
JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH
382
EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER
and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D.
BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR
and RANDALL C. TABAYOYONG, SENATE OF THE
PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;
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, 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
SEPARATE OPINION
QUISUMBING, J.:
1. With due respect to the main opinion written by J. Antonio T.
Carpio, and the dissent of J. Reynato S. Puno, I view the matter
before us in this petition as one mainly involving a complex political
question.1 While admittedly the present Constitution lays down certain
numerical requirements for the conduct of a People's Initiative, such
as the percentages of signatures – being 12% of the total number of
registered voters, provided each legislative district is represented by
at least 3% – they are not the main points of controversy. Stated in
simple terms, what this Court must decide is whether the Commission
on Elections gravely abused its discretion when it denied the petition
to submit the proposed changes to the Constitution directly to the
vote of the sovereign people in a plebiscite. Technical
questions, e.g. whether petitioners should have filed a Motion for
Reconsideration before coming to us, are of no moment in the face of
the transcendental issue at hand. What deserve our full attention are
the issues concerning the applicable rules as well as statutory and
constitutional limitations on the conduct of the People's Initiative.
2. It must be stressed that no less than the present Constitution itself
empowers the people to "directly" propose amendments through their
own "initiative." The subject of the instant petition is by way of
exercising that initiative in order to change our form of government
from presidential to parliamentary. Much has been written about the
fulsome powers of the people in a democracy. But the most basic
concerns the idea that sovereignty resides in the people and that all
government authority emanates from them. Clearly, by the power of
popular initiative, the people have the sovereign right to change the
present Constitution. Whether the initial moves are done by a
Constitutional Convention, a Constitutional Assembly, or a People's
Initiative, in the end every amendment -- however insubstantial or
radical -- must be submitted to a plebiscite. Thus, it is the ultimate will
of the people expressed in the ballot, that matters.2
3. I cannot fault the COMELEC, frankly, for turning down the petition
of Messrs. Lambino, et al. For the COMELEC was just relying on
precedents, with the common understanding that, pursuant to the
cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the
COMELEC had been permanently enjoined from entertaining any
petition for a people's initiative to amend the Constitution by no less
than this Court. In denying due course below to Messrs. Lambino and
Aumentado's petition, I could not hold the COMELEC liable for grave
abuse of discretion when they merely relied on this Court's
unequivocal rulings. Of course, the Santiago and
the PIRMA decisions could be reviewed and reversed by this Court,
as J. Reynato S. Puno submits now. But until the Court does so, the
COMELEC was duty bound to respect and obey this Court's
mandate, for the rule of law to prevail.
4. Lastly, I see no objection to the remand to the COMELEC of the
petition of Messrs. Lambino and Aumentado and 6.327 million voters,
for further examination of the factual requisites before a plebiscite is
conducted. On page 4 of the assailed Resolution of the respondent
dated August 31, 2006, the COMELEC tentatively expressed its view
that "even if the signatures in the instant Petition appear to meet the
required minimum per centum of the total number of registered
voters", the COMELEC could not give the Petition due course
383
because of our view that R.A. No. 6735 was inadequate. That,
however, is now refuted by Mr. Justice Puno's scholarly ponencia.
Now that we have revisited the Santiago v. COMELEC decision,
there is only one clear task for COMELEC. In my view, the only
doable option left for the COMELEC, once factual issues are heard
and resolved, is to give due course to the petition for the initiative to
amend our Constitution so that the sovereign people can vote on
whether a parliamentary system of government should replace the
present presidential system.
5. I am therefore in favor of letting the sovereign people speak on
their choice of the form of government as a political question soonest.
(This I say without fear of media opinion that our judicial
independence has been tainted or imperiled, for it is not.) Thus I vote
for the remand of the petition. Thereafter, as prayed for, COMELEC
should forthwith certify the Petition as sufficient in form and
substance and call for the holding of a plebiscite within the period
mandated by the basic law, not earlier than sixty nor later than ninety
days from said certification. Only a credible plebiscite itself,
conducted peacefully and honestly, can bring closure to the instant
political controversy.
LEONARDO A. QUISUMBING
Associate 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, respondent.
G. R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE
A.Q. SAGUISAG, petitioners,
vs.
HE 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
DISSENTING OPINION
CORONA, J.:
The life of the law is not logic but experience.1 Our collective
experience as a nation breathes life to our system of laws, especially
to the Constitution. These cases promise to significantly contribute to
our collective experience as a nation. Fealty to the primary
constitutional principle that the Philippines is not merely a republican
State but a democratic one as well behooves this Court to affirm the
right of the people to participate directly in the process of introducing
changes to their fundamental law. These petitions present such an
opportunity. Thus, this is an opportune time for this Court to uphold
the sovereign rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has
sufficiently explained the rationale for upholding the people's initiative.
However, I wish to share my own thoughts on certain matters I deem
material and significant.
Santiago Does Not Apply to This Case But Only to the 1997
Delfin Petition
The COMELEC denied the petition for initiative filed by petitioners
purportedly on the basis of this Court's ruling in Santiago v.
COMELEC2 that: (1) RA 6753 was inadequate to cover the system of
initiative regarding amendments to the Constitution and (2) the
COMELEC was permanently enjoined from entertaining or taking
cognizance of any petition for initiative regarding amendments to the
384
Constitution until a sufficient law was validly enacted to provide for
the implementation of the initiative provision.
However, Santiago should not apply to this case but only to the
petition of Delfin in 1997. It would be unreasonable to make it apply to
all petitions which were yet unforeseen in 1997. The fact is
that Santiago was focused on the Delfin petition alone.
Those who oppose the exercise of the people's right to initiate
changes to the Constitution via initiative claim that Santiago barred
any and all future petitions for initiative by virtue of the doctrines
of stare decisis and res judicata. The argument is flawed.
The ponencia of Mr. Justice Puno has amply discussed the
arguments relating to stare decisis. Hence, I will address the
argument from the viewpoint of res judicata.
Res judicata is the rule that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of
the parties and their privies and, as to them, constitutes an absolute
bar to a subsequent action involving the same claim, demand or
cause of action.3 It has the following requisites: (1) the former
judgment or order must be final; (2) it must have been rendered by a
court having jurisdiction of the subject matter and of the parties; (3) it
must be a judgment or order on the merits and (4) there must be
identity of parties, of subject matter, and of cause of action between
the first and second actions.4
There is no identity of parties in Santiago and the instant case. While
the COMELEC was also the respondent in Santiago, the petitioners
in that case and those in this case are different. More significantly,
there is no identity of causes of action in the two
cases. Santiago involved amendments to Sections 4 and 7 of Article
VI, Section 4 of Article VII and Section 8 of Article X of the
Constitution while the present petition seeks to amend Sections 1to 7
of Article VI and Sections 1 to 4 of the 1987 Constitution. Clearly,
therefore, the COMELEC committed grave abuse of discretion when
it ruled that the present petition for initiative was barred
by Santiago and, on that ground, dismissed the petition.
The present petition and that in Santiago are materially different from
each other. They are not based on the same facts. There is thus no
cogent reason to frustrate and defeat the present direct action of the
people to exercise their sovereignty by proposing changes to their
fundamental law.
People's Initiative Should Not
Be Subjected to Conditions
People's initiative is an option reserved by the people for themselves
exclusively. Neither Congress nor the COMELEC has the power to
curtail or defeat this exclusive power of the people to change the
Constitution. Neither should the exercise of this power be made
subject to any conditions, as some would have us accept.
Oppositors to the people's initiative point out that this Court ruled
in Santiago that RA 6735 was inadequate to cover the system of
initiative on amendments to the Constitution and, thus, no law existed
to enable the people to directly propose changes to the Constitution.
This reasoning is seriously objectionable.
The pronouncement on the insufficiency of RA 6735 was, to my mind,
out of place. It was unprecedented and dangerously transgressed the
domain reserved to the legislature.
While the legislature is authorized to establish procedures for
determining the validity and sufficiency of a petition to amend the
constitution,5 that procedure cannot unnecessarily restrict the initiative
privilege.6 In the same vein, this Court cannot unnecessarily and
unreasonably restrain the people's right to directly propose changes
to the Constitution by declaring a law inadequate simply for lack of a
sub-heading and other grammatical but insignificant omissions.
Otherwise, the constitutional intent to empower the people will be
severely emasculated, if not rendered illusory.
People's Right and Power to Propose Changes to the
Constitution Directly Should not be Unreasonably Curtailed
If Congress and a constitutional convention, both of which are
mere representative bodies, can propose changes to the
385
Constitution, there is no reason why the supreme body politic itself –
the people – may not do so directly.
Resort to initiative to amend the constitution or enact a statute is an
exercise of "direct democracy" as opposed to "representative
democracy." The system of initiative allows citizens to directly
propose constitutional amendments for the general electorate to
adopt or reject at the polls, particularly in a plebiscite. While
representative government was envisioned to "refine and enlarge the
public views, by passing them through the medium of a chosen body
of citizens, whose wisdom may best discern the true interest of their
country, and whose patriotism and love of justice will be least likely to
sacrifice it to temporary or partial considerations,"7 the exercise of
"direct democracy" through initiative reserves direct lawmaking power
to the people by providing them a method to make new laws via the
constitution, or alternatively by enacting statutes.8 Efforts of the
represented to control their representatives through initiative have
been described as curing the problems of democracy with more
democracy.9
The Constitution celebrates the sovereign right of the people and
declares that "sovereignty resides in the people and all government
authority emanates from them."10 Unless the present petition is
granted, this constitutional principle will be nothing but empty rhetoric,
devoid of substance for those whom it seeks to empower.
The right of the people to pass legislation and to introduce changes to
the Constitution is a fundamental right and must be jealously
guarded.11 The people should be allowed to directly seek redress of
the problems of society and representative democracy with the
constitutional tools they have reserved for their use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
RENATO C. CORONA
Associate Justice
____________________
 EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP),
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F. BALAIS,
Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR.,
ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO,
HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR.
DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA
ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, 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, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO
R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-
ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG
MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I.
CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT,
ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President,
MANUEL VILLAR, JR.,Oppositors-Intervenors;
G.R. No. 174299 entitled
386
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
SEPARATE OPINION
TINGA, J:
I join in full the opinion of Senior Associate Justice Puno. Its enviable
sang-froid, inimitable lucidity, and luminous scholarship are all so
characteristic of the author that it is hardly a waste of pen and ink to
write separately if only to express my deep admiration for his
disquisition. It is compelling because it derives from the fundamental
democratic ordinance that sovereignty resides in the people, and it
seeks to effectuate that principle through the actual empowerment of
the sovereign people. Justice Puno's opinion will in the short term
engender reactions on its impact on present attempts to amend the
Constitution, but once the political passion of the times have been
shorn, it will endure as an unequivocal message to
the taongbayan that they are to be trusted to chart the course of their
future.
Nothing that I inscribe will improve on Justice Puno's opinion. I only
write separately to highlight a few other points which also inform my
vote to grant the petitions.
I.
I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v.
COMELEC2 had not acquired value as precedent and should be
reversed in any case. I add that the Court has long been mindful of
the rule that it necessitates a majority, and not merely a plurality, in
order that a decision can stand as precedent. That principle has
informed the members of this Court as they deliberated and voted
upon contentious petitions, even if this consideration is not ultimately
reflected on the final draft released for promulgation.
The curious twist to Santiago and PIRMA is that for all the denigration
heaped upon Rep. Act No. 6735 in those cases, the Court did not
invalidate any provision of the statute. All the Court said then was that
the law was "inadequate". Since this "inadequate" law was not
annulled by the Court, or repealed by Congress, it remained part of
the statute books.3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the
Court in Santiago should not have simply let the insufficiency stand
given that it was not minded to invalidate the law itself. Article 9 of the
Civil Code provides that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the
laws."4As explained by the Court recently in Reyes v. Lim,5 "[Article 9]
calls for the application of equity, which[, in the revered Justice
Cardozo's words,] 'fills the open spaces in the law.'"6 Certainly, any
court that refuses to rule on an action premised on Rep. Act No. 6735
on the ground that the law is "inadequate" would have been found in
grave abuse of discretion. The previous failure by the Court to "fill the
open spaces" in Santiago further highlights that decision's status as
an unfortunate aberration.
I am mindful of the need to respect stare decisis, to the point of
having recently decried a majority ruling that was clearly minded to
reverse several precedents but refused to explicitly say so.7 Yet the
principle is not immutable.8The passionate words of Chief Justice
Panganiban in Osmeña v. COMELEC9 bear quoting:
Before I close, a word about stare decisis. In the present
case, the Court is maintaining the ad ban to be consistent
with its previous holding in NPC vs. Comelec. Thus,
respondent urges reverence for the stability of judicial
doctrines. I submit, however, that more important than
consistency and stability are the verity, integrity and
correctness of jurisprudence. As Dean Roscoe Pound
explains, "Law must be stable but it cannot stand still." Verily,
it must correct itself and move in cadence with the march of
the electronic age. Error and illogic should not be
387
perpetuated. After all, the Supreme Court, in many cases, has
deviated from stare decisis and reversed previous doctrines
and decisions.10 It should do no less in the present case.11
Santiago established a tenet that the Supreme Court may affirm a law
as constitutional, yet declare its provisions as inadequate to
accomplish the legislative purpose, then barred the enforcement of
the law. That ruling is erroneous, illogical, and should not be
perpetuated.
II.
Following Justice Puno's clear demonstration why Santiago should
not be respected as precedent, I agree that the COMELEC's failure to
take cognizance of the petitions as mandated by Rep. Act No. 6735
constitutes grave abuse of discretion correctible through the petitions
before this Court.
The Court has consistently held in cases such as Abes v.
COMELEC12, Sanchez v. COMELEC13, and Sambarani v.
COMELEC14 that "the functions of the COMELEC under the
Constitution are essentially executive and administrative in
nature".15 More pertinently, in Buac v. COMELEC16, the Court held
that the jurisdiction of the COMELEC relative to the enforcement and
administration of a law relative to a plebiscite fell under the
jurisdiction of the poll body under its constitutional mandate "to
enforce and administer all laws and regulations relative to the
conduct of a xxx plebiscite".17
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The
primary task of the COMELEC under Rep. Act No. 6735 is to enforce
and administer the said law, functions that are essentially executive
and administrative in nature. Even the subsequent duty of the
COMELEC of determining the sufficiency of the petitions after they
have been filed is administrative in character. By any measure, the
COMELEC's failure to perform its executive and administrative
functions under Rep. Act No. 6735 constitutes grave abuse of
discretion.
III.
It has been argued that the subject petitions for initiative are barred
under Republic Act No. 6735 as they allegedly embrace more than
one subject. Section 10 of Rep. Act No. 6735 classifies as a
"prohibited measure," a petition submitted to the electorate that
embraces more than one subject.18 On this point, reliance is
apparently placed on the array of provisions which are to be affected
by the amendments proposed in the initiative petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined
constitutional principle that the laws passed by Congress "shall
embrace only one subject which shall be expressed in the title
thereof".19 The one-subject requirement under the Constitution is
satisfied if all the parts of the statute are related, and are germane to
the subject matter expressed in the title, or as long as they are not
inconsistent with or foreign to the general subject and title.20 An act
having a single general subject, indicated in the title, may contain any
number of provisions, no matter how diverse they may be, so long as
they are not inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by providing for the
method and means of carrying out the general object.21
The precedents governing the one-subject, one-title rule under the
Constitution should apply as well in the interpretation of Section 10 of
Rep. Act No. 6735. For as long as it can be established that an
initiative petition embraces a single general subject, the petition may
be allowed no matter the number of constitutional provisions
proposed for amendment if the amendments are germane to the
subject of the petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions
expressly propose the changing of the form of government from
bicameral-presidential to unicameral-parliamentary. Such a proposal
may strike as comprehensive, necessitating as it will the
reorganization of the executive and legislative branches of
government, nevertheless it ineluctably encompasses only a single
general subject still.
The 1987 Constitution (or any constitution for that matter) is
susceptible to division into several general spheres. To cite the
broadest of these spheres by way of example, Article III enumerates
the guaranteed rights of the people under the Bill of Rights; Articles
388
VI, VII and VIII provide for the organizational structure of government;
while Articles II, XII, XIII & XIV, XV and XVI enunciate policy
principles of the State. What would clearly be prohibited under
Section 10 of Rep. Act No. 6735 is an initiative petition that seeks to
amend provisions which do not belong to the same sphere. For
example, had a single initiative petition sought not only to change the
form of government from presidential to parliamentary but also to
amend the Bill of Rights, said petition would arguably have been
barred under Section 10, as that petition ostensibly embraces more
than one subject, with each subject bearing no functional relation to
the other. But that is not the case with the present initiative petitions.
Neither can it be argued that the initiative petitions embrace more
than one subject since the proposed amendments seek to affect two
separate branches of government. The very purpose of the initiative
petitions is to fuse the powers of the executive and legislative
branches of government; hence, the amendments intended to effect
such general intent necessarily affects the two branches. If it required
that to propose a shift in government from presidential to
parliamentary, the amendments to Article VII (Executive Branch)
have to be segregated to a different petition from that which would
propose amendments to Article VI (Legislative Branch), then the
result would be two initiative petitions ─ both subject to separate
authentications, consideration and even plebiscites, all to effect one
general proposition. This scenario, which entertains the possibility
that one petition would ultimately fail while the other succeeds, could
thus allow for the risk that the executive branch could be abolished
without transferring executive power to the legislative branch. An
absurd result, indeed.
I am not even entirely comfortable with the theoretical underpinnings
of Section 10. The Constitution indubitably grants the people the right
to seek amendment of the charter through initiative, and mandates
Congress to "provide for the implementation of the exercise of this
right." In doing so, Congress may not restrict the right to initiative on
grounds that are not provided for in the Constitution. If for example
the implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition
should not be sustained. Congress is tasked with the implementation,
and not the restriction of the right to initiative.
The one-subject requirement under Section 10 is not provided for as
a bar to amendment under the Constitution. Arguments can be
supplied for the merit of such a requirement, since it would afford a
measure of orderliness when the vital question of amending the
Constitution arises. The one-subject requirement does allow the
voters focus when deliberating whether or not to vote for the
amendments. These factors of desirability nonetheless fail to detract
from the fact that the one-subject requirement imposes an additional
restriction on the right to initiative not contemplated by the
Constitution. Short of invalidating the requirement, a better course of
action would be to insist upon its liberal interpretation. After all, the
Court has consistently adhered to a liberal interpretation of the one-
subject, one-title rule.22 There is no cause to adopt a stricter
interpretative rule with regard to the one-subject rule under Section
10 of Rep. Act No. 6735.
IV.
During the hearing on the petitions, the argument was raised that
provisions of the Constitution amended through initiative would not
have the benefit of a reference source from the record of a
deliberative body such as Congress or a constitutional convention. It
was submitted that this consideration influenced the Constitutional
Commission as it drafted Section 2, Article XVII, which expressly
provided that only amendments, and not revisions, may be the
subject of initiative petitions.
This argument clearly proceeds from a premise that accords supreme
value to the record of deliberations of a constitutional convention or
commission in the interpretation of the charter. Yet if the absence of a
record of deliberations stands as so serious a flaw as to invalidate or
constrict processes which change a constitution or its provisions, then
the entire initiative process authorized by the Constitution should be
scarlet-marked as well.
Even if this position can be given any weight in the consideration of
these petitions, I would like to point out that resort to the records of
deliberations is only one of many aids to constitutional construction.
For one, it should be abhorred if the provision under study is itself
clear, plain, and free from ambiguity. As the Court held in Civil
Liberties Union v. Executive Secretary:23
389
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the
views of the large majority who did not talk . . . We think it
safer to construe the constitution from what appears upon its
face."24
Even if there is need to refer to extrinsic sources in aid of
constitutional interpretation, the constitutional record does not provide
the exclusive or definitive answer on how to interpret the provision.
The intent of a constitutional convention is not controlling by itself,
and while the historical discussion on the floor of the constitutional
convention is valuable, it is not necessarily decisive. The Court has
even held in Vera v. Avelino25 that "the proceedings of the
[constitutional] convention are less conclusive of the proper
construction of the fundamental law than are legislative proceedings
of the proper construction of a statute, since in the latter case it is the
intent of the legislature that courts seek, while in the former courts are
endeavoring to arrive at the intent of the people through the
discussions and deliberations of their representatives."26 The proper
interpretation of a constitution depends more on how it was
understood by the people adopting it than the framers' understanding
thereof.27
If there is fear in the absence of a constitutional record as guide for
interpretation of any amendments adopted via initiative, such
absence would not preclude the courts from interpreting such
amendments in a manner consistent with how courts generally
construe the Constitution. For example, reliance will be placed on the
other provisions of the Constitution to arrive at a harmonized and
holistic constitutional framework. The constitutional record is hardly
the Rosetta Stone that unlocks the meaning of the Constitution.
V.
I fully agree with Justice Puno that all issues relating to the sufficiency
of the initiative petitions should be remanded to the COMELEC. Rep.
Act No. 6735 clearly reposes on the COMELEC the task of
determining the sufficiency of the petitions, including the
ascertainment of whether twelve percent (12%) of all registered
voters, including three percent (3%) of registered voters in every
legislative district have indeed signed the initiative petitions.28 It
should be remembered that the COMELEC had dismissed the
initiative petitions outright, and had yet to undertake the determination
of sufficiency as required by law.
It has been suggested to the end of leading the Court to stifle the
initiative petitions that the Court may at this juncture pronounce the
initiative petitions as insufficient. The derivation of the factual
predicates leading to the suggestion is uncertain, considering that the
trier of facts, the COMELEC in this instance, has yet to undertake the
necessary determination. Still, the premise has been floated that
petitioners have made sufficient admissions before this Court that
purportedly established the petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental question
that we should ask, I submit, is whether it serves well on the Court to
usurp trier of facts even before the latter exercises its functions? If the
Court, at this stage, were to declare the petitions as insufficient, it
would be akin to the Court pronouncing an accused as guilty even
before the lower court trial had began.
Matugas v. COMELEC29 inveighs against the propriety of the Court
uncharacteristically assuming the role of trier of facts, and resolving
factual questions not previously adjudicated by the lower courts or
tribunals:
[P]etitioner in this case cannot "enervate" the COMELEC's
findings by introducing new evidence before this Court,
which in any case is not a trier of facts, and then ask it to
substitute its own judgment and discretion for that of the
COMELEC.
The rule in appellate procedure is that a factual question may
not be raised for the first time on appeal, and documents
390
forming no part of the proofs before the appellate court will
not be considered in disposing of the issues of an action. This
is true whether the decision elevated for review originated
from a regular court or an administrative agency or quasi-
judicial body, and whether it was rendered in a civil case, a
special proceeding, or a criminal case. Piecemeal
presentation of evidence is simply not in accord with orderly
justice.30
Any present determination by the Court on the sufficiency of the
petitions constitutes in effect a trial de novo, the Justices of the
Supreme Court virtually descending to the level of trial court judges.
This is an unbecoming recourse, and it simply is not done.
VI.
The worst position this Court could find itself in is to acquiesce to a
plea that it make the choice whether to amend the Constitution or not.
This is a matter which should not be left to fifteen magistrates who
have not been elected by the people to make the choice for them.
A vote to grant the petitions is not a vote to amend the 1987
Constitution. It is merely a vote to allow the people to directly exercise
that option. In fact, the position of Justice Puno which I share would
not even guarantee that the Lambino and Sigaw ng Bayan initiative
petitions would be submitted to the people in a referendum. The
COMELEC will still have to determine the sufficiency of the petition.
Among the questions which still have to be determined by the poll
body in considering the sufficiency of the petitions is whether twelve
percent (12%) of all registered voters nationwide, including three
percent (3%) of registered voters in every legislative district, have
indeed signed the initiative petitions.31
And even should the COMELEC find the initiative petitions sufficient,
the matter of whether the Constitution should be amended would still
depend on the choice of the electorate. The oppositors are clearly
queasy about some of the amendments proposed, or the imputed
motives behind the amendments. A referendum, should the
COMELEC find the petitions as sufficient, would allow them to convey
their uneasiness to the public at large, as well as for the proponents
of the amendment to defend their proposal. The campaign period
alone would allow the public to be involved in the significant
deliberation on the course our nation should take, with the ensuing
net benefit of a more informed, more politically aware populace. And
of course, the choice on whether the Constitution should be amended
would lie directly with the people. The initiative process involves
participatory democracy at its most elemental; wherein
the consequential debate would not be confined to the august halls
of Congress or the hallowed chambers of this Court, as it would spill
over to the public squares and town halls, the academic yards and
the Internet blogosphere, the dining areas in the homes of the affluent
and the impoverished alike.
The prospect of informed and widespread discussion on
constitutional change engaged in by a people who are actually
empowered in having a say whether these changes should be
enacted, gives fruition to the original vision of pure democracy, as
formulated in Athens two and a half millennia ago. The great hero of
Athenian democracy, Pericles, was recorded as saying in his famed
Funeral Oration, "We differ from other states in regarding the man
who keeps aloof from public life not as 'private' but as useless; we
decide or debate, carefully and in person all matters of policy,
and we hold, not that words and deeds go ill together, but that
acts are foredoomed to failure when undertaken undiscussed."32
Unfortunately, given the highly politicized charge of the times, it has
been peddled that an act or vote that assists the initiative process is
one for the willful extinction of democracy or democratic institutions.
Such a consideration should of course properly play its course in the
public debates and deliberations attendant to the initiative process.
Yet as a result of the harum-scarum, the temptation lies heavy for a
member of this Court perturbed with the prospect of constitutional
change to relieve those anxieties by simply voting to enjoin any legal
procedure that initiates the amendment or revision of the fundamental
law, even at the expense of the people's will or what the Constitution
allows. A vote so oriented takes the conservative path of least
resistance, even as it may gain the admiration of those who do not
want to see the Constitution amended.
Still, the biases we should enforce as magistrates are those of the
Constitution and the elements of democracy on which our rule of law
391
is founded. Direct democracy, as embodied in the initiative process,
is but a culmination of the evolution over the centuries of democratic
rights of choice and self-governance. The reemergence of the
Athenian democratic ideal after centuries of tyrannical rules arrived
very slowly, the benefits parceled out at first only to favored classes.
The Magna Carta granted limited rights to self-determination and self-
governance only to a few English nobles; the American Constitution
was originally intended to give a meaningful voice only to free men,
mostly Caucasian, who met the property-holding requirements set by
the states for voting. Yet even the very idea of popular voting, limited
as it may have already been within the first few years of the American
Union, met resistance from no less a revered figure as Alexander
Hamilton, to whom the progressive historian Howard Zinn attributes
these disconcerting words:
The voice of the people has been said to be the voice of God;
and however generally this maxim has been quoted and
believed, it is not true in fact. The people are turbulent and
changing; they seldom judge or determine right. Give
therefore to the first class a distinct permanent share in the
government… Can a democratic assembly who annually
revolve in the mass of the people be supposed steadily to
pursue the public good? Nothing but a permanent body can
check the imprudence of democracy…33
This utterly paternalistic and bigoted view has not survived into the
present age of modern democracy where a person's poverty, color, or
gender no longer impedes the exercise of full democratic rights. Yet a
democracy that merely guarantees its citizens the right to live their
lives freely is incomplete if there is no corresponding allowance for a
means by which the people have a direct choice in determining their
country's direction. Initiative as a mode of amending a constitution
may seem incompatible with representative democracy, yet it
embodies an even purer form of democracy. Initiative, which our
1987 Constitution saw fit to grant to the people, is a progressive
measure that is but a continuation of the line of evolution of the
democratic ideal.
By allowing the sovereign people to directly propose and enact
constitutional amendments, the initiative process should be
acknowledged as the purest implement of democratic rule under law.
This right granted to over sixty million Filipinos cannot be denied by
the votes of less than eight magistrates for reasons that bear no
cogitation on the Constitution.
I VOTE to GRANT the petitions.
DANTE O. TINGA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP),
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F. BALAIS,
Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR.,
ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO,
HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR.
DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA
ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, 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, SENATE MINORITY
392
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO
R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-
ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG
MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I.
CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT,
ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President,
MANUEL VILLAR, JR.,Oppositors-Intervenors;
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
DISSENTING OPINION
CHICO-NAZARIO, J.:
"The people made the constitution, and the people can unmake it. It
is the creature of their will, and lives only by their will. But this
supreme and irresistible power to make or unmake, resides only in
the whole body of the people; not in any subdivision of them."
-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5
L ed. 257, 287.
I express my concurrence in the discussions and conclusions
presented in the persuasive and erudite dissent of Justice Reynato S.
Puno. However, I make some additional observations in connection
with my concurrence.
While it is but proper to accord great respect and reverence to the
Philippine Constitution of 1987 for being the supreme law of the land,
we should not lose sight of the truth that there is an ultimate authority
to which the Constitution is also subordinate – the will of the people.
No less than its very first paragraph, the Preamble,1expressly
recognizes that the Constitution came to be because it was ordained
and promulgated by the sovereign Filipino people. It is a principle
reiterated yet again in Article II, Section 1, of the Constitution, which
explicitly declares that "[t]he Philippines is a democratic and
republican State. Sovereignty resides in the people and all
government authority emanates from them." Thus, the resolution of
the issues and controversies raised by the instant Petition should be
guided accordingly by the foregoing principle.
If the Constitution is the expression of the will of the sovereign
people, then, in the event that the people change their will, so must
the Constitution be revised or amended to reflect such change.
Resultantly, the right to revise or amend the Constitution inherently
resides in the sovereign people whose will it is supposed to express
and embody. The Constitution itself, under Article XVII, provides for
the means by which the revision or amendment of the Constitution
may be proposed and ratified.
Under Section 1 of the said Article, proposals to amend or revise the
Constitution may be made (a) by Congress, upon a vote of three-
fourths of all its Members, or (b) by constitutional convention. The
Congress and the constitutional convention possess the power to
propose amendments to, or revisions of, the Constitution not simply
because the Constitution so provides, but because the sovereign
people had chosen to delegate their inherent right to make such
proposals to their representatives either through Congress or through
a constitutional convention.
On the other hand, the sovereign people, well-inspired and greatly
empowered by the People Power Revolution of 1986, reserved to
themselves the right to directly propose amendments to the
Constitution through initiative, to wit –
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
393
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.2
The afore-quoted section does not confer on the Filipino people the
right to amend the Constitution because, as previously discussed,
such right is inherent in them. The section only reduces into writing
this right to initiate amendments to the Constitution where they
collectively and willfully agreed in the manner by which they shall
exercise this right: (a) through the filing of a petition; (b) supported by
at least twelve percent (12%) of the total number of registered voters
nationwide; (c) with each legislative district represented by at least
three percent (3%) of the registered voters therein; (d) subject to the
limitation that no such petition may be filed within five years after the
ratification of the Constitution, and not oftener than once every five
years thereafter; and (e) a delegation to Congress of the authority to
provide the formal requirements and other details for the
implementation of the right.
It is my earnest opinion that the right of the sovereign people to
directly propose amendments to the Constitution through initiative is
more superior than the power they delegated to Congress or to a
constitutional convention to amend or revise the Constitution. The
initiative process gives the sovereign people the voice to express
their collective will, and when the people speak, we must be ready to
listen. Article XVII, Section 2 of the Constitution recognizes and
guarantees the sovereign people's right to initiative, rather than limits
it. The enabling law which Congress has been tasked to enact must
give life to the said provision and make the exercise of the right to
initiative possible, not regulate, limit, or restrict it in any way that
would render the people's option of resorting to initiative to amend the
Constitution more stringent, difficult, and less feasible, as compared
to the other constitutional means to amend or revise the
Constitution. In fact, it is worth recalling that under Article VI,
Section 1 of the Constitution, the legislative power of Congress
is limited to the extent reserved to the people by the provisions
on initiative and referendum.
It is with this frame of mind that I review the issues raised in the
instant Petitions, and which has led me to the conclusions, in support
of the dissent of Justice Puno, that (a) The Commission on Election
(COMELEC) had indeed committed grave abuse of discretion in
summarily dismissing the petition for initiative to amend the
Constitution filed by herein petitioners Raul L. Lambino and Erico B.
Aumentado; (b) The Court should revisit the pronouncements it made
in Santiago v. Commission on Elections;3 (c) It is the sovereign
people's inherent right to propose changes to the Constitution,
regardless of whether they constitute merely amendments or a total
revision thereof; and (d) The COMELEC should take cognizance of
Lambino and Aumentado's petition for initiative and, in the exercise of
its jurisdiction, determine the factual issues raised by the oppositors
before this Court.
I
The COMELEC had indeed committed grave abuse of discretion
when it summarily dismissed Lambino and Aumentado's petition for
initiative entirely on the basis of the Santiago case which, allegedly,
permanently enjoined it from entertaining or taking cognizance of any
petition for initiative to amend the Constitution in the absence of a
sufficient law.
After a careful reading, however, of the Santiago case, I believe in
earnest that the permanent injunction actually issued by this Court
against the COMELEC pertains only to the petition for initiative filed
by Jesus S. Delfin, and not to all subsequent petitions for initiative to
amend the Constitution.
The Conclusion4 in the majority opinion in the Santiago case reads –
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
394
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;
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.
It is clear from the fallo, as it is reproduced above, that the Court
made permanent the Temporary Restraining Order (TRO) it issued
on 18 December 1996 against the COMELEC. The said TRO
enjoined the COMELEC from proceeding with the Delfin Petition, and
Alberto and Carmen Pedrosa from conducting a signature drive for
people's initiative.5 It was this restraining order, more particularly the
portion thereof referring to the Delfin Petition, which was expressly
made permanent by the Court. It would seem to me that the
COMELEC and all other oppositors to Lambino and Aumentado's
petition for initiative gave unwarranted significance and weight to the
first paragraph of the Conclusion in the Santiago case. The first and
second paragraphs of the Conclusion, preceding the dispositive
portion, merely express the opinion of the ponente; while the
definite orders of the Court for implementation are found in the
dispositive portion.
We have previously held that –
The dispositive portion or the fallo is what actually constitutes
the resolution of the court and which is the subject of
execution, although the other parts of the decision may be
resorted to in order to determine the ratio decidendi for such a
resolution. Where there is conflict between the dispositive part
and the opinion of the court contained in the text of the
decision, the former must prevail over the latter on the theory
that the dispositive portion is the final order while the opinion
is merely a statement ordering nothing. Hence execution must
conform more particularly to that ordained or decreed in the
dispositive portion of the decision.6
Is there a conflict between the first paragraph of the Conclusion and
the dispositive portion of the Santiago case? Apparently, there is. The
first paragraph of the Conclusion states that the COMELEC should be
permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution until
the enactment of a valid law. On the other hand, the fallo only makes
permanent the TRO7 against COMELEC enjoining it from proceeding
with the Delfin Petition. While the permanent injunction
contemplated in the Conclusion encompasses all petitions for
initiative on amendments to the Constitution, the fallo is expressly
limited to the Delfin Petition. To resolve the conflict, the final order of
the Court as it is stated in the dispositive portion or the fallo should be
controlling.
Neither can the COMELEC dismiss Lambino and Aumentado's
petition for initiative on the basis of this Court's Resolution, dated 23
September 1997, in the case of People's Initiative for Reform,
Modernization and Action (PIRMA) v. The Commission on Elections,
395
et al.8 The Court therein found that the COMELEC did not commit
grave abuse of discretion in dismissing the PIRMA Petition for
initiative to amend the Constitution for it only complied with the
Decision in the Santiago case.
It is only proper that the Santiago case should also bar the PIRMA
Petition on the basis of res judicata because PIRMA participated in
the proceedings of the said case, and had knowledge of and, thus,
must be bound by the judgment of the Court therein. As explained by
former Chief Justice Hilario G. Davide, Jr. in his separate opinion to
the Resolution in the PIRMA case –
First, it is barred by res judicata. No one aware of the
pleadings filed here and in Santiago v. COMELEC (G.R. No.
127325, 19 March 1997) may plead ignorance of the fact that
the former is substantially identical to the latter, except for the
reversal of the roles played by the principal parties and
inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are
raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE
FOR REFORM, MODERNIZATION, AND ACTION (PIRMA)
and Spouses ALBERTO PEDROSA and CARMEN
PEDROSA. PIRMA is self-described as "a non-stock, non-
profit organization duly organized and existing under
Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with
"ALBERTO PEDROSA and CARMEN PEDROSA" as among
its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as
alleged in the body of the petition therein, "proposes to
undertake the signature drive for a people's initiative to
amend the Constitution." In Santiago then, the PEDROSAS
were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared
that PIRMA was duly represented at the hearing of the Delfin
petition in the COMELEC. In short, PIRMA was intervenor-
petitioner therein. Delfin alleged in his petition that he was a
founding member of the Movement for People's Initiative, and
 under footnote no. 6 of the decision, it was noted that said
movement was "[l]ater identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for brevity." In
their Comment to the petition in Santiago, the PEDROSA'S
did not deny that they were founding members of PIRMA, and
by their arguments, demonstrated beyond a shadow of a
doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners
PIRMA and the PEDROSAS, as well as the others joining
them, from the operation of the principle of res judicata, which
needs no further elaboration.9
While the Santiago case bars the PIRMA case because of res
judicata, the same cannot be said to the Petition at bar. Res judicata
is an absolute bar to a subsequent action for the same cause; and its
requisites are: (a) the former judgment or order must be final; (b) the
judgment or order must be one on the merits; (c) it must have been
rendered by a court having jurisdiction over the subject matter and
parties; and (d) there must be between the first and second actions,
identity of parties, of subject matter and of causes of action.10
Even though it is conceded that the first three requisites are present
herein, the last has not been complied with. Undoubtedly,
the Santiago case and the present Petition involve different parties,
subject matter, and causes of action, and the former should not bar
the latter.
In the Santiago case, the petition for initiative to amend the
Constitution was filed by Delfin alone. His petition does not qualify as
the initiatory pleading over which the COMELEC can acquire
jurisdiction, being unsupported by the required number of registered
voters, and actually imposing upon the COMELEC the task of
gathering the voters' signatures. In the case before us, the petition for
initiative to amend the Constitution was filed by Lambino and
Aumentado, on behalf of the 6.3 million registered voters who affixed
their signatures on the signature sheets attached thereto. Their
petition prays that the COMELEC issue an Order –
396
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 the COMELEC of
the sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.
Although both cases involve the right of the people to initiate
amendments to the Constitution, the personalities concerned and the
other factual circumstances attendant in the two cases differ. Also
dissimilar are the particular prayer and reliefs sought by the parties
from the COMELEC, as well as from this Court. For these reasons, I
find that the COMELEC acted with grave abuse of discretion when it
summarily dismissed the petition for initiative filed by Lambino and
Aumentado. It behooves the COMELEC to accord due course to a
petition which on its face complies with the rudiments of the law.
COMELEC was openly negligent in summarily dismissing the
Lambino and Aumentado petition. The haste by which the instant
Petition was struck down is characteristic of bad faith, which, to my
mind, is a patent and gross evasion of COMELEC's positive duty. It
has so obviously copped out of its duty and responsibility to
determine the sufficiency thereof and sought protection and
justification for its craven decision in the supposed permanent
injunction issued against it by the Court in the Santiago case. The
COMELEC had seemingly expanded the scope and application of the
said permanent injunction, reading into it more than what it actually
states, which is surprising, considering that the Chairman and
majority of the members of COMELEC are lawyers who should be
able to understand and appreciate, more than a lay person, the legal
consequences and intricacies of the pronouncements made by the
Court in the Santiago case and the permanent injunction issued
therein.
No less than the Constitution itself, under the second paragraph of
Article XVII, Section 4, imposes upon the COMELEC the mandate to
set a date for plebiscite after a positive determination of the
sufficiency of a petition for initiative on amendments to the
Constitution, viz –
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.
As a rule, the word "shall" commonly denotes an imperative obligation
and is inconsistent with the idea of discretion, and that the
presumption is that the word "shall" when used, is
mandatory.11 Under the above-quoted constitutional provision, it is the
mandatory or imperative obligation of the COMELEC to (a) determine
the sufficiency of the petition for initiative on amendments to the
Constitution and issue a certification on its findings; and (b) in case
such petition is found to be sufficient, to set the date for the plebiscite
on the proposed amendments not earlier than 60 days nor later than
90 days after its certification. The COMELEC should not be allowed
to shun its constitutional mandate under the second paragraph of
Article XVII, Section 4, through the summary dismissal of the petition
for initiative filed by Lambino and Aumentado, when such petition is
supported by 6.3 million signatures of registered voters. Should all of
these signatures be authentic and representative of the required
percentages of registered voters for every legislative district and the
whole nation, then the initiative is a true and legitimate expression of
the will of the people to amend the Constitution, and COMELEC had
caused them grave injustice by silencing their voice based on a
patently inapplicable permanent injunction.
II
We should likewise take the opportunity to revisit the
pronouncements made by the Court in its Decision in
the Santiago case, especially as regards the supposed insufficiency
or inadequacy of Republic Act No. 6735 as the enabling law for the
implementation of the people's right to initiative on amendments to
the Constitution.
397
The declaration of the Court that Republic Act No. 6735 is insufficient
or inadequate actually gave rise to more questions rather than
answers, due to the fact that there has never been a judicial
precedent wherein the Court invalidated a law for insufficiency or
inadequacy. The confusion over such a declaration thereby impelled
former Chief Justice Davide, Jr., the ponente in the Santiago case, to
provide the following clarification in his separate opinion to the
Resolution in the PIRMA case, thus –
Simply put, Santiago did, in reality, declare as unconstitutional
that portion of R.A. No. 6735 relating to Constitutional
initiatives for failure to comply with the "completeness and
sufficient standard tests" with respect to permissible
delegation of legislative power or subordinate legislation.
However petitioners attempt to twist the language in Santiago,
the conclusion is inevitable; the portion of R.A. No. 6735 was
held to be unconstitutional.
It is important to note, however, that while the Decision in
the Santiago case pronounced repeatedly that Republic Act No. 6735
was insufficient and inadequate, there is no categorical declaration
therein that the said statute was unconstitutional. The express finding
that Republic Act No. 6735 is unconstitutional can only be found in
the separate opinion of former Chief Justice Davide to the Resolution
in the PIRMA case, which was not concurred in by the other
members of the Court.
Even assuming arguendo that the declaration in the Santiago case,
that Republic Act No. 6735 is insufficient and inadequate, is already
tantamount to a declaration that the statute is unconstitutional, it was
rendered in violation of established rules in statutory construction,
which state that –
[A]ll presumptions are indulged in favor of constitutionality;
one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt (Victoriano v.
Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact,
this Court does not decide questions of a constitutional nature
unless that question is properly raised and presented in
appropriate cases and is necessary to a determination of the
case, i.e., the issue of constitutionality must be lis mota
 presented (Tropical Homes v. National Housing Authority, 152
SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided
the issue of constitutionality of Republic Act No. 6735 by ordering the
COMELEC to dismiss the Delfin petition for the simple reason that it
does not constitute an initiatory pleading over which the COMELEC
could acquire jurisdiction. And second, the unconstitutionality of
Republic Act No. 6735 has not been adequately shown. It was by and
large merely inferred or deduced from the way Republic Act No. 6735
was worded and the provisions thereof arranged and organized by
Congress. The dissenting opinions rendered by several Justices in
the Santiago case reveal the other side to the argument, adopting the
more liberal interpretation that would allow the Court to sustain the
constitutionality of Republic Act No. 6735. It would seem that the
majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of
the statute.
The Court, acting en banc on the Petition at bar, can revisit its
Decision in the Santiago case and again open to judicial review the
constitutionality of Republic Act No. 6735; in which case, I shall cast
my vote in favor of its constitutionality, having satisfied the
completeness and sufficiency of standards tests for the valid
delegation of legislative power. I fully agree in the conclusion made
by Justice Puno on this matter in his dissenting opinion12 in
the Santiago case, that reads –
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
398
initiative, directs how initiative proceeding is commenced,
what the COMELEC should do upon filing of the petition for
initiative, how a proposition is approved, when a plebiscite
may be held, when the amendment takes effect, and what
matters may not be the subject of any initiative. By any
measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented discourse
on the difference between an "amendment" and a "revision" of the
Constitution. Allow me also to articulate my additional thoughts on the
matter.
Oppositors to Lambino and Aumentado's petition for initiative argue
that the proposed changes therein to the provisions of the
Constitution already amount to a revision thereof, which is not
allowed to be done through people's initiative; Article XVII, Section 2
of the Constitution on people's initiative refers only to proposals for
amendments to the Constitution. They assert the traditional
distinction between an amendment and a revision, with amendment
referring to isolated or piecemeal change only, while revision as a
revamp or rewriting of the whole instrument.13
However, as pointed out by Justice Puno in his dissent, there is no
quantitative or qualitative test that can establish with definiteness the
distinction between an amendment and a revision, or between a
substantial and simple change of the Constitution.
The changes proposed to the Constitution by Lambino and
Aumentado's petition for initiative basically affect only Article VI on
the Legislative Department and Article VII on the Executive
Department. While the proposed changes will drastically alter the
constitution of our government by vesting both legislative and
executive powers in a unicameral Parliament, with the President as
the Head of State and the Prime Minister exercising the executive
power; they would not essentially affect the other 16 Articles of the
Constitution. The 100 or so changes counted by the oppositors to the
other provisions of the Constitution are constituted mostly of the
nominal substitution of one word for the other, such as Parliament for
Congress, or Prime Minister for President. As eloquently pointed out
in the dissent of Justice Puno, the changes proposed to transform our
form of government from bicameral-presidential to unicameral-
parliamentary, would not affect the fundamental nature of our state as
a democratic and republican state. It will still be a representative
government where officials continue to be accountable to the people
and the people maintain control over the government through the
election of members of the Parliament.
Furthermore, should the people themselves wish to change a
substantial portion or even the whole of the Constitution, what or who
is to stop them? Article XVII, Section 2 of the Constitution which, by
the way it is worded, refers only to their right to initiative on
amendments of the Constitution? The delegates to the Constitutional
Convention who, according to their deliberations, purposely limited
Article XVII, Section 2 of the Constitution to amendments? This Court
which has the jurisdiction to interpret the provision? Bearing in mind
my earlier declaration that the will of the sovereign people is
supreme, there is nothing or no one that can preclude them from
initiating changes to the Constitution if they choose to do so. To
reiterate, the Constitution is supposed to be the expression and
embodiment of the people's will, and should the people's will clamor
for a revision of the Constitution, it is their will which should prevail.
Even the fact that the people ratified the 1987 Constitution, including
Article XVII, Section 2 thereof, as it is worded, should not prevent the
exercise by the sovereign people of their inherent right to change the
Constitution, even if such change would be tantamount to a
substantial amendment or revision thereof, for their actual exercise of
the said right should be a clear renunciation of the limitation which the
said provision imposes upon it. It is the inherent right of the people as
sovereign to change the Constitution, regardless of the extent
thereof.
IV
Lastly, I fail to see the injustice in allowing the COMELEC to give due
course to and take cognizance of Lambino and Aumentado's petition
for initiative to amend the Constitution. I reiterate that it would be a
greater evil if one such petition which is ostensibly supported by the
required number of registered voters all over the country, be
summarily dismissed.
399
Giving due course and taking cognizance of the petition would not
necessarily mean that the same would be found sufficient and set for
plebiscite. The COMELEC still faces the task of reviewing the petition
to determine whether it complies with the requirements for a valid
exercise of the right to initiative. Questions raised by the oppositors to
the petition, such as those on the authenticity of the registered voters'
signatures or compliance with the requisite number of registered
voters for every legislative district, are already factual in nature and
require the reception and evaluation of evidence of the parties. Such
questions are best presented and resolved before the COMELEC
since this Court is not a trier of facts.
In view of the foregoing, I am of the position that the Resolution of the
COMELEC dated 31 August 2006 denying due course to the Petition
for Initiative filed by Lambino and Aumentado be reversed and set
aside for having been issued in grave abuse of discretion, amounting
to lack of jurisdiction, and that the Petition be remanded to the
COMELEC for further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and
Aumentado.
MINITA V. CHICO-NAZARIO
Associate 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, respondent.
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
VELASCO, JR., J.:
Introduction
The fate of every democracy, of every
government based on the Sovereignty of the
people, depends on the choices it makes
between these opposite principles: absolute
power on the one hand, and on the other the
restraints of legality and the authority of
tradition.
—John Acton
In this thorny matter of the people's initiative, I concur with the erudite
and highly persuasive opinion of Justice Reynato S. Puno upholding
the people's initiative and raise some points of my own.
The issue of the people's power to propose amendments to the
Constitution was once discussed in the landmark case of Santiago v.
COMELEC.1 Almost a decade later, the issue is once again before
the Court, and I firmly believe it is time to reevaluate the
pronouncements made in that case.
The issue of Charter Change is one that has sharply divided the
nation, and its proponents and opponents will understandably take all
measures to advance their position and defeat that of their
opponents. The wisdom or folly of Charter Change does not concern
the Court. The only thing that the Court must review is the validity of
the present step taken by the proponents of Charter Change, which is
the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987
Constitution:
400
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.
In the Santiago case, the Court discussed whether the second
paragraph of that section had been fulfilled. It determined that
Congress had not provided for the implementation of the exercise of
the people's initiative, when it held that Republic Act No. 6735, or
"The Initiative and Referendum Act," was "inadequate to cover the
system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation."2
With all due respect to those Justices who made that declaration, I
must disagree.
Republic Act No. 6735 is the proper law for proposing
constitutional amendments and it should not have been
considered inadequate.
The decision in Santiago focused on what it perceived to be fatal
flaws in the drafting of the law, in the failings of the way the law was
structured, to come to the conclusion that the law was inadequate.
The Court itself recognized the legislators' intent, but disregarded this
intent. The law was found wanting. The Court then saw the inclusion
of the Constitution in RA 6735 as an afterthought. However, it was
included, and it should not be excluded by the Court via a strained
analysis of the law. The difficult construction of the law should not
serve to frustrate the intent of the framers of the 1987 Constitution: to
give the people the power to propose amendments as they saw fit. It
is a basic precept in statutory construction that the intent of the
legislature is the controlling factor in the interpretation of a
statute.3 The intent of the legislature was clear, and yet RA 6735 was
declared inadequate. It was not specifically struck down or declared with the constitutional mandate to provide for the
unconstitutional, merely incomplete. The Court focused on what RA implementation of the right of the people under that system.
6735 was not, and lost sight of what RA 6735 was.
In the said case, the Court's fallo states as follows:
It is my view that the reading of RA 6735 in Santiago should have
been more flexible. It is also a basic precept of statutory construction WHEREFORE, judgment is hereby rendered
that statutes should be construed not so much according to the letter
that killeth but in line with the purpose for which they have been a) GRANTING the instant petition;
enacted.4 The reading of the law should not have been with the view
of its defeat, but with the goal of upholding it, especially with its
b) DECLARING R. A. 6735 inadequate to cover the system of
avowed noble purpose.
initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation;
Congress has done its part in empowering the people themselves to
propose amendments to the Constitution, in accordance with the
c) DECLARING void those parts of Resolutions No. 2300 of
Constitution itself. It should not be the Supreme Court that stifles the
the Commission on Elections prescribing rules and
people, and lets their cries for change go unheard, especially when
regulations on the conduct of initiative or amendments to the
the Constitution itself grants them that power.
Constitution; and
The court's ruling in the Santiago case does not bar the present
d) ORDERING the Commission on Elections to forthwith
petition because the fallo in the Santiago case is limited to the
DISMISS the DELFIN petition (UND-96-037).
Delfin petition.
The Temporary Restraining Order issued on 18 December
The Santiago case involved a petition for prohibition filed by Miriam
1996 is made permanent as against the Commission on
Defensor-Santiago, et al., against the COMELEC, et al., which sought
Elections, but is LIFTED against private respondents.
to prevent the COMELEC from entertaining the "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's
Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the Resolution on the matter of contempt is hereby reserved.
Court made the following conclusion, viz:
SO ORDERED.
This petition must then be granted and the COMELEC should
be permanently enjoined from entertaining or taking The question now is if the ruling in Santiago is decisive in this case. It
cognizance of any petition or initiative on amendments on the is elementary that when there is conflict between the dispositive
Constitution until a sufficient law shall have been validly portion or fallo of the decision and the opinion of the court contained
enacted to provide for the implementation of the system in the text or body of the judgment, the former prevails over the latter.
(emphasis supplied). An order of execution is based on the disposition, not on the body, of
the decision.5 The dispositive portion is its decisive resolution; thus, it
We feel, however, that the system of initiative to propose is the subject of execution. The other parts of the decision may be
amendments to the Constitution should no longer be kept in resorted to in order to determine the ratio decidendi for the
the cold; it should be given flesh and blood, energy and disposition. Where there is conflict between the dispositive part
strength. Congress should not tarry any longer in complying and the opinion of the court contained in the text or body of the
decision, the former must prevail over the latter on the theory
401
that the dispositive portion is the final order, while the opinion is
merely a statement ordering nothing. Hence, the execution must
conform with that which is ordained or decreed in the dispositive
portion of the decision.6
A judgment must be distinguished from an opinion. The latter is an
informal expression of the views of the court and cannot prevail
against its final order or decision. While the two may be combined in
one instrument, the opinion forms no part of the judgment. So there is
a distinction between the findings and conclusions of a court and its
Judgment. While they may constitute its decision and amount to the
rendition of a judgment, they are not the judgment itself. It is not
infrequent that the grounds of a decision fail to reflect the exact views
of the court, especially those of concurring justices in a collegiate
court. We often encounter in judicial decisions lapses, findings, loose
statements and generalities which do not bear on the issues or are
apparently opposed to the otherwise sound and considered result
reached by the court as expressed in the dispositive part, so called,
of the decision.7
Applying the foregoing argument to the Santiago case, it immediately
becomes apparent that the disposition in the latter case categorically
made permanent the December 18, 1996 Temporary Restraining
Order issued against the COMELEC in the Delfin petition but did NOT
formally incorporate therein any directive PERMANENTLY enjoining
the COMELEC "from entertaining or taking cognizance of any petition
for initiative on amendments." Undeniably, the perpetual proscription
against the COMELEC from assuming jurisdiction over any other
petition on Charter Change through a People's Initiative is just a
conclusion and cannot bind the poll body, for such unending ban
would trench on its constitutional power to enforce and administer all
laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall under Section 2,
Article IX of the Constitution. RA 6735 gave the COMELEC the
jurisdiction to determine the sufficiency of the petition on the initiative
under Section 8, Rule 11 and the form of the petition under Section 3,
Rule I; hence, it cannot be barred from entertaining any such
petition.
In sum, the COMELEC still retains its jurisdiction to take cognizance
of any petition on initiative under RA 6735 and it can rule on the
402
petition and its action can only be passed upon by the Court when the
same is elevated through a petition for certiorari. COMELEC cannot
be barred from acting on said petitions since jurisdiction is conferred
by law (RA 6735) and said law has not been declared
unconstitutional and hence still valid though considered inadequate in
the Santiago case.
Respondents, however, claim that the Court in the subsequent case
of PIRMA v. Commission on Elections8confirmed the statement of the
Court in the Santiago case that the COMELEC was "permanently
enjoined from entertaining or taking cognizance of any petition for
initiative on amendments." Much reliance is placed on the ruling
contained in a Minute Resolution which reads:
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.
Take note that the Court specifically referred to "dispositions" in the
March 19, 1997 Decision. To reiterate, the dispositions in the
Santiago case decision refer specifically to the December 18, 1996
TRO being made permanent against the COMELEC but do not
pertain to a permanent injunction against any other petition for
initiative on amendment. Thus, what was confirmed or even affirmed
in the Minute Resolution in the PIRMA case pertains solely to the
December 18, 1996 TRO which became permanent, the declaration
of the inadequacy of RA 6735, and the annulment of certain parts of
Resolution No. 2300 but certainly not the alleged perpetual injunction
against the initiative petition. Thus, the resolution in the PIRMA case
cannot be considered res judicata to the Lambino petition.
Amendment or Revision
One last matter to be considered is whether the petition may be
allowed under RA 6735, since only amendments to the Constitution
may be the subject of a people's initiative.
The Lambino petition cannot be considered an act of revising the
Constitution; it is merely an attempt to amend it. The term
amendment has to be liberally construed so as to effectuate the
people's efforts to amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:
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 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 suppress
portions of it that seem obsolete, or dangerous, or misleading
in their effect.
In this case, the Lambino petition is not concerned with rewriting the
entire Constitution. It was never its intention to revise the whole
Constitution. It merely concerns itself with amending a few provisions
in our fundamental charter.
When there are gray areas in legislation, especially in matters that
pertain to the sovereign people's political rights, courts must lean
more towards a more liberal interpretation favoring the people's right
to exercise their sovereign power.
Conclusion
403
Sovereignty residing in the people is the highest form of sovereignty
and thus deserves the highest respect even from the courts. It is not
something that can be overruled, set aside, ignored or stomped over
by whatever amount of technicalities, blurred or vague provisions of
the law.
As I find RA 6735 to be adequate as the implementing law for the
People's Initiative, I vote to grant the petition in G.R. No. 174153 and
dismiss the petition in G.R. No. 174299. The Amended Petition for
Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado
should be remanded to the COMELEC for determination whether or
not the petition is sufficient under RA 6735, and if the petition is
sufficient, to schedule and hold the necessary plebiscite as required
by RA 6735.
It is time to let the people's voice be heard once again as it was
twenty years ago. And should this voice demand a change in the
Constitution, the Supreme Court should not be one to stand in its
way.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1
Including Sigaw ng Bayan and Union of Local Authorities of the
Philippines (ULAP).
2
This provision states: "Requirements. — x 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."
3
This provision states: "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."
4
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:
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
404
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.
5
Sections 1, 2, 3, and 4 of Article VII will be changed thus:
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.
6
Sections 1-5 of the Transitory Provisions read:
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 "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 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 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
405
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) 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 incumbent President and Vice
President.
7
As revised, Article XVIII contained a new paragraph in Section 4
(paragraph 3) and a modified paragraph 2, Section 5, thus:
Section 4. x x x x
 (3) Senators whose term of office ends in 2010 shall be
Members of Parliament until noon of the thirtieth day of June
2010.
xxxx
Section 5. x x x x
(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 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.
8
336 Phil. 848 (1997); Resolution dated 10 June 1997.
9
The COMELEC held:
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.
406
The afore-quoted 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 Republic Act No. 6735.
However, the Supreme Court, in the landmark case
of Santiago vs. 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 centumof the registered
voters therein, still the Petition cannot be given due course
since the Supreme Court categorically declared R.A. No.
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.
Considering the foregoing, We are therefore constrained not
to entertain or give due course to the instant Petition.
10
Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera,
Ruelo Baya; Philippine Transport and General Workers Organization
(PTGWO); Trade Union Congress of the Philippines; Sulong Bayan
Movement Foundation, Inc.
11
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L.
Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos P.
Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra;
Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops
Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Jojo Pineda, Dr. Darby Santiago, Dr.
Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja,
Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa Antonino;
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;
Senate of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar,
Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C.
Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu
Province Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr.,
and Senators Sergio R. Osmeňa III, Jamby Madrigal, Jinggoy
Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada
and Pwersa ng Masang Pilipino.
12
This provision states: "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."
13
I RECORD, 387-388.
During the deliberations of the Constitutional Commission,
14
Commissioner Rene V. Sarmiento made the following report (I
RECORD 389):
407
MR. SARMIENTO: Madam President, I am happy that the
Committee on Amendments and Transitory Provisions
decided to retain the system of initiative as a mode of
amending the Constitution. I made a survey of American
constitutions and I discovered that 13 States provide for a
system of initiative as a mode of amending the Constitution —
Arizona, Arkansas, California, Colorado, Massachusetts,
Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio,
Oklahoma and Oregon. The initiative for ordinary laws only is
used in Idaho, Maine, Montana and South Dakota. So, I am
happy that this was accepted or retained by the Committee.
xxxx
The Americans in turn copied the concept of initiatives from
the Swiss beginning in 1898 when South Dakota adopted the
initiative in its constitution. The Swiss cantons experimented
with initiatives in the 1830s. In 1891, the Swiss incorporated
the initiative as a mode of amending their national
constitution. Initiatives promote "direct democracy" by
allowing the people to directly propose amendments to the
constitution. In contrast, the traditional mode of changing the
constitution is known as "indirect democracy" because the
amendments are referred to the voters by the legislature or
the constitutional convention.
Florida requires only that the title and summary of the proposed
15
amendment are "printed in clear and unambiguous language."
Advisory Opinion to the Attorney General RE Right of Citizens to
Choose Health Care Providers, No. 90160, 22 January 1998,
Supreme Court of Florida.
16
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933);
Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Heidtman v.
City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954);
Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay
Hike Committee v. Town Council of Town of Irvington, 166 N.J.
Super. 197, 399 A.2d 336 (1979); State ex rel Evans v. Blackwell,
Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
17
407 Mass. 949, 955 (1990). Affirmed by the District Court of from ratification of the proposed changes, "shall convene to propose
Massachusetts in Henry v. Conolly, 743 F. Supp. 922 (1990) and by amendments to, or revisions of, this Constitution."
the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d.
1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 29
448 So.2d 984, 994 (1984), internal citations omitted.
Mass.L.Rptr. 14 (2001).
30
698 P.2d 1173, 1184 (1985).
18
89 P.3d 1227, 1235 (2004).
31
I RECORD 386, 392, 402-403.
19
Stumpf v. Law, 839 P. 2d 120, 124 (1992).
32
196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App.
Exhibit "B" of the Lambino Group's Memorandum filed on 11
20
1, 882 P.2d 91 (1994).
October 2006.
33
392 P.2d 636, 638 (1964).
Annex "B" of the Comment/Opposition in Intervention of Atty. Pete
21

Quirino-Quadra filed on 7 September 2006. 34

930 P.2d 186, 196 (1996), internal citations omitted.
22
www.ulap.gov.ph. 35
Livermore v. Waite, 102 Cal. 113, 118-119 (1894).
23
www.ulap.gov.ph/reso2006-02.html. Amador Valley Joint Union High School District v. State Board of
36

Equalization, 583 P.2d 1281, 1286 (1978).

The full text of the proposals of the Consultative Commission on
24

Charter Change can be downloaded at its official website at 37

Id.
www.concom.ph.
38
Legislature of the State of California v. EU, 54 Cal.3d 492, 509
25
The Lambino Group's Memorandum, p. 5. (1991).
26
Under the proposed Section 1(2), Article VI of the Constitution, California Association of Retail Tobacconists v. State, 109
39
members of Parliament shall be elected for a term of five years Cal.App.4th 792, 836 (2003).
"without limitation as to the number thereof."
40
See note 44, infra.
27
Under the proposed Section 4(1), Article XVIII, Transitory
Provisions of the Constitution, the interim Parliament "shall continue
Joaquin Bernas, The 1987 Constitution of the Republic of the
41
until the Members of the regular Parliament shall have been elected
Philippines: A Commentary, p. 1294 (2003).
and shall have qualified." Also, under the proposed Section 5(2),
Article XVIII, of the same Transitory Provisions, the interim Parliament
"shall provide for the election of the members of Parliament."
42
238 So.2d 824 (1970).

28
Under the proposed Section 4(3), Article XVIII, Transitory
43
Id. at 830-832.
Provisions of the Constitution, the interim Parliament, within 45 days

408
 As stated by Associate Justice Romeo J. Callejo, Sr. during the 26
44
law, we have no means of ensuring meaningful participation by
September 2006 oral arguments. people in formulating and enacting the norms and standards which
organize the kinds of societies in which we want to live."
45
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10
November 2003, 415 SCRA 44; J.M. Tuason & Co., Inc. v. Land 2
GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of
Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining reference, my Separate Opinion is reproduced in full:
Corporation v. Rodriguez, 66 Phil. 259 (1938).
"Our distinguished colleague, Mr. Justice Hilario G. Davide
882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v.
46
Jr., writing for the majority, holds that:
Keisling found the amendment in question was not a revision.
'(1) The Comelec acted without jurisdiction or with grave
47
Section 1, Article V of the Constitution. abuse of discretion in entertaining the 'initiatory' Delfin
Petition.
48
Section 11(1), Article XVI of the Constitution.
'(2) While the Constitution allows amendments to 'be directly
49
Section 2, Article VII of the Constitution. proposed by the people through initiative,' there is no
implementing law for the purpose. RA 6735 is 'incomplete,
50
This section provides: "The Philippines is a democratic and inadequate, or wanting in essential terms and conditions
republican State. Sovereignty resides in the people and all insofar as initiative on amendments to the Constitution is
government authority emanates from them." concerned.'

51
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. '(3) Comelec Resolution No. 2300, 'insofar as it prescribes
v. COA, 366 Phil. 273 (1999). rules and regulations on the conduct of initiative on
amendments to the Constitution, is void.'
52
G.R. No. 129754, Resolution dated 23 September 1997.
"I concur with the first item above. Until and unless an
initiatory petition can show the required number of signatures
53
Presidential Proclamation No. 58 dated February 11, 1987, entitled
— in this case, 12% of all the registered voters in the
"Proclaiming the Ratification of the Constitution of the Republic of the
Philippines with at least 3% in every legislative district — no
Philippines Adopted by the Constitutional Commission of 1986,
public funds may be spent and no government resources may
including the Ordinance Appended thereto."
be used in an initiative to amend the Constitution. Verily, the
Comelec cannot even entertain any petition absent such
PANGANIBAN, CJ.: signatures. However, I dissent most respectfully from the
majority's two other rulings. Let me explain.
1
Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule
of Law" in her speech before the Global Forum on Liberty and "Under the above restrictive holdings espoused by the Court's
Prosperity held on October 18-20, 2006 in Manila. She further stated: majority, the Constitution cannot be amended at all through a
"Without the rule of law, government officials are not bound by people's initiative. Not by Delfin, not by PIRMA, not by
standards of conduct. Without the rule of law, the dignity and equality anyone, not even by all the voters of the country acting
of all people is not affirmed and their ability to seek redress for together. This decision will effectively but unnecessarily
grievances and societal commitments is limited. Without the rule of
409
 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:
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."
3
GR No. 129754, September 23, 1997 (still unpublished in
the Philippine Reports or in the Supreme Court Reports Annotated).
Again, for ease of reference, I reproduce my Separate Opinion in full:
"Petitioners assail the July 8, 1997 Resolution of Respondent
Commission dismissing their petition for a people's initiative to
amend the Constitution. Said petition before the Comelec
(henceforth, PIRMA petition) was backed up by nearly six (6)
million signatures constituting about 16% of the registered
voters of the country with at least 3% in each legislative
district. The petition now before us presents two grounds:
410
"1. In refusing to act on the PIRMA petition, the Comelec
allegedly acted with grave abuse of discretion amounting to
lack or excess of jurisdiction; and
"2. In declaring R.A. 6735 "inadequate to cover its system of
initiative on amendments to the Constitution" and "declaring
void those parts of Resolution 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of
[an] initiative [on] amendments to the Constitution," the
Supreme Court's Decision in G.R. No. 127325 entitled Miriam
Defensor Santiago vs. Commission on Elections (hereafter
referred to as Santiago) should be reexamined because said
Decision is allegedly "unconstitutional," and because, in any
event, the Supreme Court itself, in reconsidering the said
issue per its June 10, 1997 Resolution, was deadlocked at six
votes one each side.
"The following in my position on each of these two issues:
First Issue:
No Grave Abuse of Discretion in Comelec's Refusal to Act
"The Respondent Commission's refusal to act on the
"prayers" of the PIRMA petition cannot in any wise be
branded as "grave abuse of discretion." Be it remembered
that the Court's Decision in Santiago permanently enjoined
the Comelec "from entertaining or taking cognizance of any
petition for initiative on amendments to the
4
Republic v. COCOFED, 423 Phil. 735, December 14, 2001.
5
Well-entrenched is this definition of grave abuse of discretion. Id.;
Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-
Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and
Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.
6
In PIRMA, I submitted as follows: "I believed, and still do, that the
majority gravely erred in rendering such a sweeping injunction [that
covered ANY petition, not just the Delfin petition], 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.
Regusal 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."
7
42 Am. Jr. 2d, §26, citing Birmingham Gas Co. v. Bessemer; 250
Ala 137, 33 So 2d 475, 250 Ala 137; Tacker v. Board of Comrs., 127
Fla 248, 170 So 458; Hoxie V. Scott, 45 Neb 199, 63 NW 387; Gill v.
Board of Comrs., 160 NC 176, 76, SE 204.
8
Partido ng Manggagawa v. Comelec, GR No. 164702, March 15,
2006.
9
Article XVII (AMENDMENTS OR REVISIONS)
"SEC. 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(1) The Congress, upon the 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 though 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.
"SEC. 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority
411
vote of all its Members, submit to the electorate the question
of calling such a convention.
"SEC. 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 on Elections of
the sufficiency of the petition."
10
Republic Act 6735, Sec. 10, provides:
"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; and
(b) Statutes involving emergency measures, the
enactment of which are specifically vested in
Congress by the Constitution, cannot be subject to
referendum until ninety (90) days after its effectivity."
11
The principle of separation of powers operates at the core of a
presidential form of government. Thus, legislative power is given to
the legislature; executive power, to a separate executive (from whose
prominent position in the system, the presidential nomenclature is
derived); and judicial power, to an independent judiciary. This system
embodies interdependence by separation.
On the other hand, a parliamentary system personifies
interdependence by integration, its essential features being the
following: "(1) The members of the government or cabinet or the
executive arm are, as a rule, simultaneously members of the
legislature. (2) The government or cabinet, consisting of the political
leaders of the majority party or of a coalition who are also members
of the legislative, is in effect a committee of the legislature. (3) The
government or cabinet has a pyramidal structure, at the apex of
which is the Prime Minister or his equivalent. (4) The government or
cabinet remains in power only for as long as it enjoys the support of
the majority of the legislature. (5) Both government and legislature
process, the sovereign people committed themselves to following the
rule of law, even when they wished to make changes in the basic
system of government." A. ALTMAN, ARGUING ABOUT LAW 94
(2001).
See my Separate Opinion in Francisco Jr. v. House of
15

are possessed of control devices with which each can demand of the Representatives, 415 SCRA 45, November 10, 2003.
other immediate political responsibility." These control devices are a
vote of no-confidence (censure), whereby the government may be 16
See, for instance, the front page Malaya report entitled "Lobbyists
ousted by the legislature; and the power of the government to soil dignity of Supreme Court" (October 23, 2006).
dissolve the legislature and call for new elections. (J. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A 17
Lk 8:17.
COMMENTARY, Vol. II, 17-18 (1988 ed.).
YNARES-SANTIAGO, J.:
With respect to the transformation from a bicameral to a unicameral
legislature, the change involves the form of representation and the
lawmaking process.
1
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

12
Attached to the Opposition-in-Intervention of Intervenors OneVoice
2
SEC. 5. Requirements.— x x x
Inc., etc., is a photocopy of the Certification dated August 23, 2006,
issued by Atty. Marlon S. Casquejo, the election officer for the (c) The petition shall state the following:
3rd District and the officer-in-charge for the 1st and the 2nd Districts of
Davao City. The Certification states that "this office (First, Second c.1. contents or text of the proposed law sought to be
and Third District, Davao City) has not verified the signatures of enacted, approved or rejected, amended or repealed, as the
registered voters x x x." case may be;

13
In People v. Veneracion, the Court held: "Obedience to the rule of c.2. the proposition;
law forms the bedrock of our system of justice. If judges, under the
guide of religious or political beliefs were allowed to roam unrestricted c.3. the reason or reasons therefore;
beyond boundaries within which they are required by law to exercise
the duties of their office, then law becomes meaningless. A c.4. that it is not one of the exceptions provided herein;
government of laws, not of men, excludes the exercise of broad
discretionary powers by those acting under its authority. Under this
c.5. signatures of the petitioners or registered voters; and
system, judges are guided by the Rule of Law, and ought 'to protect
and enforce it without fear or favor,' resist encroachments by
governments, political parties, or even the interference of their own c.6. an abstract or summary proposition in not more than one
personal beliefs." (249 SCRA 244, October 13, 1995, per Kapunan, hundred (100) words which shall be legibly written or printed
J.) at the top of every page of the petition.

14
An American professor on legal philosophy, A. Altman, puts it thus:
3
SEC. 3. Definition of Terms.— For purposes of this Act, the
"By ratifying the constitution that included an explicit amendment following terms shall mean: x x x

412
(d) "Proposition" is the measure proposed by the voters. or revisions of, the Constitution within 45 days from ratification of the
proposed changes.
4
I Record, Constitutional Commission 387-389 (July 9, 1986).
The United Kingdom, for instance, has a two-house parliament, the
11

5
Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d
1014, 1965 OK 118 (1965).
6
Section 26. (1) Every bill passed by the Congress shall embrace
only one subject which shall be expressed in the title thereof.
House of Lords and the House of Commons.
12
Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44,
quoted in Separate Opinion of J. Hilario G. Davide, Jr. in PIRMA v.
COMELEC, G.R. No. 129754, September 23, 1997, p. 7.

7
The late Senator (then Congressman) Raul S. Roco stated this fact 13
151-A Phil. 35 (1973).
in his sponsorship presentation of H.B. No. 21505, thus:
14
196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).
xxxx
15
801 P. 2d 1077 (Cal. 1990).
D. Prohibited Subjects.
16
583 P. 2d 1281 (Cal. 1982).
The bill provides for two kinds of measures which cannot be
the subject of an initiative or referendum petition. A petition 17
Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d
that embraces more than one subject cannot be submitted to 274 (Cal. 1982).
the electorate as it would be violative of the constitutional
proscription on passing bills containing more than one 18
Supra note 13. It may well be pointed out that in making the
subject, and statutes involving emergency measures cannot distinction between amendment and revision, Justice Antonio relied
be subject to referendum until 90 days after its effectivity. not only in the analogy presented in Wheeler v. Board of Trustees, 37
[Journal and record of the house of representatives, Second S.E. 2d 322, but cited also the seminal ruling of the California
Regular Session, Vol. 6, p. 975 (February 14, 1989).] Supreme Court in McFadden v. Jordan, supra.

8
Memorandum of petitioner Aumentado, p. 117. 19
Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71,
citing Pangasinan Transportation Co. v. PSC, 40 O.G., 8th Supp. 57.
9
The proposed Section 4(3) of Article XVIII of the Constitution states
that Senators whose term of office ends in 2010 shall be members of 20
The 1987 Constitution of the Philippines: A Commentary, 1996 ed.,
parliament until noon of the thirtieth day of June 2010. No counterpart Fr. Joaquin G. Bernas, S.J., p. 1161.
provision was provided for members of the House of Representatives
who, as members of the interim parliament under the proposed 21
Id.
changes, shall schedule the elections for the regular parliament in its
discretion. 22
Supra note 14.
10
The proposed Section 4(3), Article XVIII of the Constitution states
that the interim parliament shall convene to propose amendments to,

413
23
The Constitution of the Republic of the Philippines, Vol. II, 1st ed.,
Fr. Joaquin G. Bernas, S.J., p. 567, citing B. Schwartz, I The Powers
of Government (1963).
24
16 C.J.S. §3 at 24.
25
14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p.
1349.
26
A bogus revolution, Philippine Daily Inquirer, September 11, 2006,
Fr. Joaquin Bernas, S.J., p. A15.
27
Article II, Section 1 of the 1987 Constitution.
SANDOVAL-GUTIERREZ, J.:
1
Works, Letter 164.
2
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
3
Resolution dated June 10, 1997, G.R. No. 127325.
4
G.R. No. 129754, September 23, 1997. Joining PIRMA as
petitioners were its founding members, spouses Alberto Pedrosa and
Carmen Pedrosa.
5
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."
6
Among them ONEVOICE, Inc., Christian S. Monsod, Rene B.
Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople,
and Carlos P. Medina, Jr., Alternative Law Groups, Inc., Senate
Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio
Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson,
Luisa P. Ejercito-Estrada, and Jinggoy Estrada, Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia
Hontiveros-Baraquel, Bayan, Kilusang Mayo Uno, Ecumenical
414
Bishops Forum, Migrante, Gabriela, Gabriela Women's Party,
Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo
Pineda, Drs. Darby Santiago and Reginald Pamugas, and Attys. Pete
Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya
Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.
7
"Grounds for contempt
3. From the time the so-called People's Initiative (hereafter PI)
now subject of Lambino v. Comelec, was
initiated, respondents did nothing to stop what was
clearly lawless, and even arguably winked at, as it were, if
not condoned and allowed, the waste and misuse of its
personnel, time, facilities and resources on an enterprise
that had no legal basis and in fact was permanently
enjoined by this Honorable Court in 1997. Seemingly
mesmerized, it is time to disenthrall them.
3.1. For instance, undersigned counsel happened to be in the
Senate on August 29, 2006 (on other business) when
respondent Chair sought to be stopped by the body from
commenting on PI out of prudential considerations, could not
be restrained. On contentious issues, he volunteered that
Sigaw ng Bayan would not cheat in Makati as it was the
opposition territory and that the fact that out of 43,405
signatures, only 7,186 were found authentic in one Makati
District, to him, showed the "efficiency" of Comelec
personnel. He could not appreciate 1) that Sigaw had no
choice but to get the constitutionality-required 3% in
every district, [Const., Art. VII, Sec. 2] friendly or
otherwise, including administration critics' turfs, and 2)
that falsus in 36,319 (93.30%) falsus in omnibus, in an
exercise that could never be free, orderly, honest and
credible, another constitutional requirement. [Nothing has
been heard about probing and prosecuting the falsifiers.]
xxxxxxxxx
3.2. It was excessively obvious to undersigned and other
observers that respondent Chairman, straining at the
 leash, was lawyering for Sigaw ng Bayan in the Senate! It
was discomfiting that he would gloss over the seeming
wholesale falsification of 96.30% of the signatures in an
exercise with no credibility! Even had he been asked, he
should have pled to be excused from answering as the
matter could come up before the Comelec for an official
collegial position (different from conceding that it is
enjoined).
15
Philippine National Bank v. Palma, G.R. No. 157279, August 9,
2005, 466 CSRA 307, citing Moreno, Philippine Law Dictionary
(1988), 3rd ed. (citing Santiago v. Valenzuela, 78 Phil. 397, [1947]).
16
Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March
25, 1999, 305 SCRA 303, citing Government v. Jalandoni, No. 837-R,
August 30, 1947, 44 O.G. 1840.
Benjamin N. Cardozo, The Nature of the Judicial Process (New
17

xxxxxxxxx Haven and London: Yale University Press, 1921), pp. 33-34.

4. Respondents Commissioners Borra and Romeo A. 18

William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.:
Brawner, for their part, even issued widely-publicized Prentice Hall Inc.,) 1973, p. 49.
written directives to the field, [Annex C, as to
Commissioner Brawner; that as to Commissioner Borra 19
Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d
will follow.] while the Commission itself was trying to be 287, 296.
careful not to be explicit in what it was abetting implicitly,
in hypocritical defiance of the injunction of 1997. 20
July 9, 1986. Records of the Constitutional Commission, No. 26.
8
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court,
Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
21
G.R. No. 72424, February 13, 1989, 170 SCRA 246.
COMMENTARY, 1996 Ed., p. 1161.
9
Supra. 22
242 N. W. 891 259 Mich 212.
10
Development Bank of the Philippines v. NLRC, March 1, 1995, 242
State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v.
23
SCRA 59; Albert v. Court of First Instance of Manila (Branch VI), L-
Perkins 137, p. 55.
26364, May 29, 1968, 23 SCRA 948.
18
City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.
11
56 O.G. 3546 cited in Albert v. Court of First Instance of Manila
(Branch VI), id. 25
Adams v. Gunter Fla, 238 So. 2d 824.
12
Supra. 26
196 P.2d 787.
13
Separate Opinion of Justice Ricardo J. Francisco, G.R. No.
129754, September 23, 1997.
27
Adams v. Gunter Fla. 238 So.2d 824.

14
G.R. No. 109645, March 4, 1996, 254 SCRA 234.
28
Mc Fadden v. Jordan, supra.

29
Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).

415
 Joaquin Bernas, Sounding Board: AMENDMENT OR
30 38
328 US 549 (1946).
REVISION, Philippine Daily Inquirer, September 25, 2006.
39
77 Phil. 192 (1946).
31
See Sections 8-12 for national initiative and referendum, and
sections 13-19 for local initiative and referendum. 40
103 Phi. 1051 (1957).
32
Section 2. Statement of Policy. – The power of the people under a 41
G.R. No. 35546, September 17, 1974, 50 SCRA 559.
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws, 42
369 US 186 (1962).
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, 43
G.R. No. 85344, December 21, 1989, 180 SCRA 496.
recognized and guaranteed.
44
G.R. No. 88211, September 15, 1989, 177 SCRA 668.
33
Section 3. Definition of terms.-
45
Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31,
xxx
1973, 50 SCRA 30.
a.1. Initiative on the Constitution which refers to a petition
CALLEJO, SR., J.:
proposing amendments to the Constitution;
1
Entitled An Act Providing for a System of Initiative and Referendum
xxx
and Appropriating Funds Therefor.
34
See Section 3(e). 2
Section 2(1), Article IX-C, 1987 Constitution.
35
Section 5 (b) – A petition for an initiative on the 1987 Constitution 3
Petition, pp. 12-14.
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
4
Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368,
registered voters therein. Initiative on the Constitution may be August 25, 2003, 409 SCRA 455, 480.
exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter.
5
Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857,
June 9, 2004, 431 SCRA 469, 480.
xxx
6
People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431
36
Section 9 (b) – The proposition in an initiative on the Constitution SCRA 610.
approved by a majority of the votes cast in the plebiscite shall
become effective as to the day of the plebiscite.
7
Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction
Co., G.R. No. L-35630, November 25, 1982, 118 SCRA 664.
37
7 How (48 US) 1 (1849).
8
People v. Court of Appeals, supra.
416
9
G.R. No. 127325, March 19, 1997, 270 SCRA 106. 23
Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno,
Ricardo J. Francisco, Jr. and Artemio V. Panganiban (now Chief
10
Article 8, New Civil Code provides that "[j]udicial decisions applying Justice).
or interpreting the laws or the Constitution shall form part of the legal
system of the Philippines." 24
The voting on the motion for reconsideration was as follows: Six
Justices, namely, Chief Justice Narvasa, and Justices Regalado,
Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278
11 Davide, Jr., Romero, Bellosillo and Kapunan, voted to deny the
SCRA 284. motions for lack of merit; and six Justices, namely, Justices Melo,
Puno, Mendoza, Francisco, Jr., Regino C. Hermosisima and
12
Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA Panganiban voted to grant the same. Justice Vitug maintained his
254. opinion that the matter was not ripe for judicial adjudication. Justices
Teodoro R. Padilla and Torres inhibited from participation in the
deliberations.
13
974 S.W.2d 451 (1998).
House Bill No. 457 filed by then Rep. Nachura during the Twelfth
25
14
Id. at 453.
Congress.
15
Entitled In Re: Rules and Regulations Governing the Conduct of
See Pagdayawon v. Secretary of Justice, G.R. No. 154569,
26
Initiative in the Constitution, and Initiative and Referendum on
September 23, 2002, 389 SCRA 480.
National and Local Laws.
27
London Street Tramways Co., Ltd. v. London County Council,
16
Supra note 10, p. 157.
[1898] A.C. 375, cited in COOLEY, A Treatise on the Constitutional
Limitations 117-118.
17
G.R. No. 129754.
28
Amended Petition for Initiative, pp. 4-7.
18
Minute Resolution, September 23, 1997, pp. 1-2.
29
Id. at 7.
Republic v. De los Angeles, No. L-26112, October 4, 1971, 41
19

SCRA 422. 30
I Records of the Constitutional Commission 373.
20
Albert v. Court of First Instance of Manila, No. L-26364, May 29, 31
Id. at 371.
1968, 23 SCRA 948.
32
Id. at 386.
Philippine Constitution Association v. Enriquez, G.R. No. 113105,
21

August 19, 1994, 235 SCRA 506. 33

Id. at 392.
22
Then Chief Justice Andres R. Narvasa, Justices Florenz D.
Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M.
34
Id. at 402-403.
Kapunan and Justo P. Torres, Jr. fully concurred in the ponencia of
Justice Davide. 35
No. L-36142, March 31, 1973, 50 SCRA 30.

417
36
Id. at 367. 55
Id. at 799.

37
SINCO, Philippine Political Law 43-44. 56
Supra note 41.

38
37 S.E.2d 322 (1946). 57
Annex "1363."

39
Id. at 330. 58
Annex "1368."

40
Id. 59
Annex "1369."

41
Sounding Board, Philippine Daily Inquirer, April 3, 2006. 60
Annex "1370."

42
Introduction to the Journal of the Constitutional Commission. 61
Annex "1371."

43
BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9. 62
Annex "1372."

44
SCHWARTZ, CONSTITUTIONAL LAW 1. 63
Annex "1374."

45
Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987. 64
Annex "1375."

46
See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909). 65
Annex "1376."

47
Id. 66
Annex "1377."

48
196 P.2d 787 (1948). 67
Annex "1378."

49
Id. at 798. 68
Annex "1379."

50
Ellingham v. Dye, 99 N.E. 1 (1912). 69
Annex "1380."

51
Dissenting Opinion of Justice Puno, p. 36. 70
Annex "1381."

52
Id. at 39. 71
Annex "1382."

53
Supra note 38. 72
Annex "1383."

54
McFadden v. Jordan, supra note 48. 73
Annex "1385."

418
74
Annex "1387." 93
Annex "1409."

75
Annex "1388." 94
Annex "1410."

76
Annex "1389." 95
Annex "1411."

77
Annex "1391." 96
Annex "1412."

78
Annex "1392." Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421
97

SCRA 423.
79
Annex "1393."
See, for example, Mendoza v. Court of Appeals, No. L-62089,
98

80
Annex "1395." March 9, 1988, 158 SCRA 508.

81
Annex "1396."
99
Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001,
370 SCRA 394.
82
Annex "1397."
Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002,
100

83
Annex "1398." 393 SCRA 639.

84
Annex "1399."
101
Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.

85
Annex "1400."
102
Tañada v. Cuenco, 103 Phil. 1051 (1957).

86
Annex "1401."
103
Id.

87
Annex "1402."
104
G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.

88
Annex "1404." Dissenting Opinion of Justice Fernando in Javellana v. Executive
105

Secretary, supra note 36.

89
Annex "1405." 106
119 N.W. 408 (1909).
90
Annex "1406." 107
22 Minn. 400 (1876).
91
Annex "1407." 108
96 S.W. 396 (1906).
92
Annex "1408." 109
63 N.J. Law 289.

419
110
77 Miss. 543 (1900). 4
Id. at 153.

111
Section 1, Article II, 1987 Constitution. 5
Id. at 157.

112
Dissenting Opinion of Justice Puno, p. 49. 6
Justice Teodoro R. Padilla did not take part in the deliberation as he
was related to a co-petitioner and co-counsel of petitioners.
113
COOLEY, A Treatise on the Constitutional Limitations 56, cited in
Ellingham v. Dye, supra. 7
Justice Davide (ponente), Chief Justice Narvasa, and Justices
Regalado, Romero, Bellosillo, and Kapunan.
114
Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).
8
Resolution dated June 10, 1997, G.R. No. 127325.
ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing
115

AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL 9

People's Initiative for Reforms, Modernization and Action (PIRMA) v.
DEMOCRACY (1984) Commission on Elections, G.R. No. 129754, September 23, 1997.

116
McBee v. Brady, 100 P. 97 (1909). 10
Amended Petition for Initiative, pp. 4-7.

117
McFadden v. Jordan, supra note 48. 11
G.R. No. 127325, March 19, 1997, 270 SCRA 106.

Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye,

118 12
Petition, pp. 12-14.
supra.
13
Advisory issued by Court, dated September 22, 2006.
119
15 N.W. 609 (1883).
14
Exhibit "B," Memorandum of Petitioner Lambino.
120
Id. at 630.
Barnhart, Principled Pragmatic Stare Decisis in Constitutional
15

AZCUNA, J.: Cases, 80 Notre Dame Law Rev., 1911-1912, (May 2005).

1
G.R. No. 127325, March 19, 1997 and June 10, 1997. 16
Ibid.

2
100 Phil. 501 (1956). 17
Id. at 1913.

PUNO, J.: 18
Consovoy, The Rehnquist Court and the End of Constitutional
Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic
1
M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819). Adjudication, 53 Utah Law Rev. 53, 67 (2002).

2
Section 1, Article II, 1987 Constitution. 19
Id. at 68.

3
270 SCRA 106, March 19, 1997. 20
Id. at 69.
420
21
Id. at 67. 38
Section 5(b).

22
Id. at 69. 39
Ibid.

23
Consovoy, supra note 18, at 57. 40
Santiago v. Commission on Elections, supra note 11, at 145.

24
Id. at 58. 41
85 Record of the House of Representatives 140-142 (February 14,
1989).
25
Id. at 64.
42
85 Record of the house of representatives 142-143 (February 14,
26
Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice 1989).
Brandeis, dissenting).
43
Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.
27
Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492
(Justice Frankfurter, concurring). 44
I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9,
1986).
28
Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987)
(Justice Stevens, dissenting). 45
Id. at 400, 402-403.

29
Barnhart, supra note 15, at 1922. 46
v record, constitutional commission 806 (October 10, 1986).

30
Id. at 1921. 47
Opposition-in-Intervention filed by ONEVOICE, p. 39.

31
Filippatos, The Doctrine of Stare Decisis and the Protection of Civil 48
Opposition-in-Intervention filed by Alternative Law Groups, Inc., p.
Rights and Liberties in the Rehnquist Court, 11 Boston College Third 30.
World Law Journal, 335, 343 (Summer 1991).
49
Introduction to Political Science, pp. 397-398.
32
347 U.S. 483 (1954).
50
Section 1, Art. II of the 1987 Constitution.
33
163 U.S. 537 (1896).
51
Eighth Edition, p. 89 (2004).
34
G.R. No. 127882, December 1, 2004, 445 SCRA 1.
52
Ibid.
35
G.R. No. 139465, October 17, 2000, 343 SCRA 377.
53
Id. at 1346.
36
Barnhart, supra note 15, at 1915.
54
Ibid.
37
112 S.Ct. 2791 (1992).
55
Third Edition, p. 67 (1969).
421
56
Id. at 68. 71
Ibid.

57
Id. at 1115. 72
No. L-1232, 79 Phil. 819, 826 (1948).

58
Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46. 73
IV RECORD, CONSTITUTIONAL COMMISSION 735 (September
17, 1986).
59
Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v.
The Executive Secretary, No. L-361432, March 31, 1973, 50 SCRA 74
Id. at 752.
30, 367-368.
75
Id. at 769.
60
J. M. Aruego, The New Philippine Constitution Explained, iii-iv
(1973). 76
Id. at 767-769.
61
E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422- 77
Id. at 377.
425 (1984).
78
Id. at 395.
62
N. Gonzales, Philippine Political Law 30 (1969 ed.).
79
Sinco, supra note 58, at 22.
63
Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
February 22, 1991, 194 SCRA 317, 337 quoting Commonwealth v. 80
Id. at 20-21.
Ralph, 111 Pa. 365, 3 Alt. 220 (1886).
81
Frivaldo v. Commission on Elections, G.R. No. 120295, June 28,
64
L-36142, March 31, 1973, 50 SCRA 30, 367. 1996, 257 SCRA 727.
65
i record, constitutional commission 373 (July 8, 1986). 82
G. Wood, The Creation of the American Republic, 530.
66
The opinion was actually made by Justice Felix Antonio. 83
Sinco, supra note 58, at 29.

Javellana v. Executive Secretary, supra note 64, citing Wheeler v.

67
State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v.
84
Board of Trustees, 37 S.E.2d 322, 327 (1946). Seydel, 74 Cal App 2d 109 (1946).
68
T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 85
Town of Whitehall v. Preece, 1998 MT 53 (1998).
(8th ed. 1927).
86
G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-
69
H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 517, citing 42 Am. Jur. 2d, p. 653.
(2nd ed. 1897).
87
Memorandum for petitioner Aumentado, pp. 151-152.
70
V. Sinco, supra note 58.
88
Id. at 153-154.
422
89
L-44640, October 12, 1976, 73 SCRA 333, 360-361. 104
ASSOCIATE JUSTICE CARPIO:

90
Section 2, Article XVII, 1987 Constitution. How many copies of the petition, that you mention(ed), did
you print?
Annex "3," Opposition-In-Intervention of Oppositors-Intervenors
91

ONEVOICE, INC., et al. ATTY. LAMBINO:

Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer,

92
We printed 100 thousand of this petition last February and
Annex "B," Memorandum of Oppositor-Intervenor Pimentel, et al.; we
Certification dated April 20, 2006 issued by Atty. Marlon S. Casquejo,
Annex "C," Memorandum of Oppositor-Intervenor Pimentel, et al.; distributed to the different organizations that were
Certification dated April 26, 2006 issued by Atty. Marlon S. Cascuejo, volunteering to support us.
Annex "D," Memorandum of Oppositor-Intervenor Pimentel, et al.
ASSOCIATE JUSTICE CARPIO:
93
Annex "1," Memorandum of Oppositor-Intevenor Antonino.
So, you are sure that you personally can say to us that 100
94
Annex "10-A," Memorandum of Oppositor-Intevenor Joseph thousand of
Ejercito Estrada, et al.
these were printed?
95
Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative
Law Groups, Inc. ATTY. LAMBINO:
96
Annexes 30-31, Id. It could be more than that, Your Honor.
97
Annexes 44-64, Id. xxxxxxxxxxxx
98
Consolidated Reply of Petitioner Aumentado, p. 54. ASSOCIATE JUSTICE CARPIO:
99
Exhibit "E," Memorandum of Petitioner Lambino. But you asked your friends or your associates to re-print, if
they can(?)
100
Annex "A," Consolidated Response of Petitioner Aumentado.
ATTY. LAMBINO:
101
Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13.
Yes, Your Honor.
102
Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).
ASSOCIATE JUSTICE CARPIO:
103
BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329
(1984). Okay, so you got 6.3 Million signatures, but you only printed
100
423
thousand. So you're saying, how many did your friends print August 25, now you are changing your mind, you're saying
of the petition? what you circulated was the petition of August 30, is that
correct?
ATTY. LAMBINO:
ATTY. LAMBINO:
I can no longer give a specific answer to that, Your Honor. I
relied In effect, yes, Your Honor.

only to the assurances of the people who are volunteering ASSOCIATE JUSTICE CARPIO:
that they are going to
So, you circulated the petition of August 30, but what you filed
reproduce the signature sheets as well as the draft petition in the
that we have given them, Your Honor.
COMELEC on August 25 was a different petition, that's why
xxxxxxxxxxxx you have to amend it?

ASSOCIATE JUSTICE CARPIO: ATTY. LAMBINO:

Did you also show this amended petition to the people? We have to amend it, because there was an oversight, Your
Honor, that
ATTY. LAMBINO:
we have omitted one very important paragraph in Section 4 of
Your Honor, the amended petition reflects the copy of the our proposition.
original
xxxxxxxxxxxx
petition that we circulated, because in the original petition that
we filed before the COMELEC, we omitted a certain ASSOCIATE JUSTICE CARPIO:
paragraph that is, Section 4 paragraph 3 which were part of
the original petition that we circulated and so we have to Okay, let's be clear. What did you circulate when you
correct that oversight because that is what we have circulated gathered the
to the people and we have to correct that…
signatures, the August 25 which you said you circulated or the
ASSOCIATE JUSTICE CARPIO: August 30?

But you just stated now that what you circulated was the ATTY. LAMBINO:
petition of
Both the August 25 petition that included all the provisions,
Your

424
 Honor, and as amended on August 30. Because we have to 106
Chief Justice Andres R. Narvasa and Justices Hilario G. Davide,
include the one that Jr., Florenz D. Regalado, Flerida Ruth P. Romero, Josue N.
Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and
we have inadvertently omitted in the August 25 petition, Your Justo P. Torres.
Honor.
107
Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza,
xxxxxxxxxxxx Ricardo J. Francisco and Artemio V. Panganiban.

ASSOCIATE JUSTICE CARPIO: 108

Justice Jose C. Vitug.

And (you cannot tell that) you can only say for certain that you 109
Only fourteen (14) justices participated in the deliberations as
printed Justice Teodoro R. Padilla took no part on account of his relationship
with the lawyer of one of the parties.
100 thousand copies?
110
Citing conscience as ground.
ATTY. LAMBINO:
111
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
That was the original printed matter that we have circulated
by the
112
Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264
(1977); Arkansas Writers' Project, Inc. v. Ragland, 107 S. Ct. 1722,
month of February, Your Honor, until some parts of March, 1730 n. 7, 95 L. Ed. 2d (1987); France v. Nelson, 292 Ark. 219, 729
Your Honor. S.W. 2d 161 (1987).

ASSOCIATE JUSTICE CARPIO:

113
40 P. 3d 886 (2006).

That is all you can assure us?

114
781 P. 2d 973 (Alaska, 1989).

ATTY. LAMBINO:
115
Id. at 982-84 (Compton, J., concurring).

That is all I can assure you, Your Honor, except that I have
116
Id. at 975-78.
asked some
117
Negri v. Slotkin, 244 N.W. 2d 98 (1976).
friends, like for example (like) Mr. Liberato Laos to help me
print out some more of this petition… (TSN, September 26, 118
112 Fla. 734, 151 So. 284 (1933).
2006, pp. 7-17)
119
Penned by Justice Whitfield, and concurred in by Chief Justice
105
Section 2 (1), Article IX – C, 1987 Constitution. Davis and Justice Terrell; Justices Ellis, Brown and Buford are of the
opinion that chapter 15938, Acts of 1933, is a special or local law not
duly advertised before its passage, as required by sections 20 and 21

425
of article 3 of the state Constitution, and therefore invalid. This evenly 3
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
divided vote resulted in the affirmance of the validity of the statute but
did not constitute a binding precedent on the Court. 4
G.R. No. 129754, September 23, 1997.

120
62 S. Ct. 552 (1942). CORONA, J.:
121
329 F. 2d 541 (1964). 1
Abrams v. United States, 250 U.S. 616.

122
239 F. 2d 532 (9th Cir. 1956). 2
336 Phil. 848 (1997).

123
Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910). 3
Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005,
475 SCRA 1.
124
331 N.E. 2d 65 (1975).
4
Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p.
125
Neil v. Biggers, supra note 108. 419.

126
Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 5
Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380,
9 H. L. Cas. 274. citing State ex rel. Stenberg v. Beermann, 240 Neb. 754, 485 N.W.
2d 151 (1992).
Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175
127

SCRA 808, 811, 812; Development Bank of the Philippines v. 6

Id. citing Coalition for Political Honesty v. State Board of Elections,
Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA 118. 83 Ill. 2d 236, 47 Ill. Dec. 363, 415 N.E. 2d 368 (1980).

128
No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara
v. Ong, No. L-29689, April 14, 1978, 82 SCRA 337.
129
Supra note 1.
QUISUMBING, J.:
1
Political questions have been defined as "Questions of which the
courts of justice will refuse to take cognizance, or to decide, on
account of their purely political character, or because their
determination would involve an encroachment upon the executive or
legislative powers; e.g., what sort of government exists in a state…."
Black's Law Dictionary, p. 1319 citing Kenneth v. Chambers, 14 How.
38, 14 L.Ed. 316.
7
Balitzer, Alfred, The Initiative and Referendum: A Study and
Evaluation of Direct Legislation, The California Roundtable 13 (1981).
The American Founding Fathers recognized that direct democracy
posed a profound threat to individual rights and liberty. The U.S.
Constitution was "designed to provide a system of government that
would prevent either a tyranny of the majority or a tyranny of the few."
James Madison "warned against the power of a majority or a minority
of the population 'united and actuated by some common impulse of
passion, or of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interest of the community.'
8
Gilbert Hahn & Steven C. Morton, Initiative and Referendum – Do
They Encourage or Impair Better State Government? 5 FLA. ST. U.
L. REV. 925, 927 (1977).

2
See 1987 Const., Art. XVII, Sec. 2.
9
Florida Advisory Council on Intergovernmental Relations, Initiatives
and Referenda: Issues in Citizen Lawmaking (1986).
426
10
Sec. 1, Article II, Constitution.
11
In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145
(Okla. 1995).
TINGA, J.:
1
G.R. No. 127325, 19 March 1997, 270 SCRA 106.
2
G.R. No. 129754, 23 September 1997.
3
Petitioner Aumentado aptly refers to the comment of the late
Senator Raul Roco that the Santiago ruling "created a third specie of
invalid laws, a mongrel type of constitutional but inadequate and,
therefore, invalid law." Memorandum for Aumentado, p. 54.
4
See Civil Code, Art. 9.
5
456 Phil. 1 (2003).
6
Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines
43 (1990) and Justice Benjamin N. Cardozo, The Nature of the
Judicial Process 113 (1921).
7
See Dissenting Opinion, Manila International Airport Authority v. City
of Parañaque, G.R. No. 155650, 20 July 2006. In
my ponencia in Globe Telecom v. NTC, G.R. No. 143964, 26 July
2004, 435 SCRA 110, I further observed that while an administrative
agency was not enslaved to obey its own precedent, it was "essential,
for the sake of clarity and intellectual honesty, that if an administrative
agency decides inconsistently with previous action, that it explain
thoroughly why a different result is warranted, or if need be, why the
previous standards should no longer apply or should be overturned."
Id., at 144. Happily, Justice Puno's present opinion expressly
elucidates why Santiago should be reversed.
8
As Justice Frankfurter once wrote: "We recognize that stare
decisis embodies an important social policy. It represents an element
of continuity in law, and is rooted in the psychologic need to satisfy
reasonable expectations. But stare decisis is a principle of policy and
427
not a mechanical formula of adherence to the latest decision,
however recent and questionable, when such adherence involves
collision with a prior doctrine more embracing in its scope, intrinsically
sounder, and verified by experience… This Court, unlike the House of
Lords, has from the beginning rejected a doctrine of disability at self-
correction." Helvering v. Hallock, 309 U.S. 106, 119-121 (1940).
9
351 Phil. 692 (1998).
10
As Chief Justice Panganiban then cited: "For instance, Ebralinag vs.
Davision Superintendent of Schools of Cebu, 219 SCRA 256, March
1, 1993, reversed the Court's 34-year-old doctrine laid down in
Gerona vs. Secretary of Education, 106 Phil 2, August 12, 1959, and
upheld the right of Jehovah's Witnesses "to refuse to salute the
Philippine flag on account of their religious beliefs." Similarly, Olaguer
vs. Military Commission, 150 SCRA 144, May 22, 1987, abandoned
the 12-year-old ruling in Aquino Jr. vs. Military Commission, 63 SCRA
546, May 9, 1975, which recognized the jurisdiction of military
tribunals to try civilians for offenses allegedly committed during
martial law. The Court likewise reversed itself in EPZA vs. Dulay, 149
SCRA 305, April 29, 1987, when it vacated its earlier ruling in
National Housing Authority vs. Reyes, 123 SCRA 245, June 29,
1983, on the validity of certain presidential decrees regarding the
determination of just compensation. In the much earlier case of
Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the
Court revoked its holding in Involuntary Insolvency of Mariano
Velasco & Co., 55 Phil 353, November 29, 1930, regarding the
relation of the insolvency law with the then Code of Civil Procedure
and with the Civil Code. Just recently, the Court, in Kilosbayan vs.
Morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier
grant of standing to petitioner-organization in Kilosbayan vs.
Guingona, 232 SCRA 110, May 5, 1994." Id., at 780.
11
Ibid.
12
129 Phil. 507, 516 (1967).
G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153
13
SCRA 67, 75.
14
G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326. publication in the authoritative congressional record. Hence, resort to
legislative deliberations is allowable when the statute is crafted in
15
Ibid. such a manner as to leave room for doubt on the real intent of the
legislature." Southern Cross Cement Corporation v. Phil. Cement
16
G.R. No. 155855, 26 January 2004, 421 SCRA 92. Manufacturers, G.R. No. G.R. No. 158540, 8 July 2004, 434 SCRA
65, 95.
17
Id., at 104. Relatedly, the Court held that "[c] ontests which do not
involve the election, returns and qualifications of elected officials are
25
77 Phil. 192 (1946).
not subjected to the exercise of the judicial or quasi-judicial powers of
courts or administrative agencies". Ibid. 26
Id. at 215.

18
See e.g., Memorandum of Oppositors-Intervenors Senators 27
Civil Liberties Union v. Executive Secretary, supra note 23, at 338;
Pimentel, Jr., et. al., pp. 19-22; Memorandum for Intervenor Senate of citing Household Finance Corporation v. Shaffner, 203 S.W. 2d 734,
the Philippines, pp. 34-35. 356 Mo. 808.

See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987
19 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const.,
28

Const, Art. VIII. Sec. 2, Art. XVI.

See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941);

20 29
G.R. No. 151944, January 20, 2004, 420 SCRA 365.
Cordero v. Hon. Jose Cabatuando, et al., 116 Phil. 736, 741 (1962).
30
Id., at 377. Emphasis supplied.
21
See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208,
214-215; citing Public Service Co., Recktenwald, 290 Ill. 314, 8 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const.,
31

A.L.R. 466, 470. See also Fariñas v. Executive Secretary, G.R. Nos.
147387 & 152161, 10 December 2003, 417 SCRA 503, 519.
22
"As a policy, this Court has adopted a liberal construction of the one
title - one subject rule." Tatad v. Secretary of Department of Energy,
346 Phil. 321, 359 (1997).
23
Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 &
83815; 22 February 1991, 194 SCRA 317.
24
Id. at 337. I have previously expressed my own doubts in relying on
the constitutional or legislative deliberations as a definitive source of
construction. "It is easy to selectively cite passages, sometimes out of
their proper context, in order to assert a misleading interpretation.
The effect can be dangerous. Minority or solitary views, anecdotal
ruminations, or even the occasional crude witticisms, may improperly
acquire the mantle of legislative intent by the sole virtue of their
428
Sec. 2, Art. XVI.
32
From the "Funeral Oration" by Pericles, as recorded by Thucydides
in the History of the Peloponnesian War.
33
H. Zinn, A People's History of the United States (1980 ed.), at 95.
CHICO-NAZARIO, J.:
1
The full text of the Preamble reads:
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 2
Id.
under the rule of law and a regime of truth, justice, freedom,
love, equality, and peace, do ordain and promulgate this 3
Commission on Audit of the Province of Cebu v. Province of Cebu,
Constitution. G.R. No. 141386, November 29, 2001, 371 SCRA 196, 202.

2
Article XVII, Constitution. 4
United Harbor Pilots' Association of the Philippines, Inc. v.
Association of International Shipping Lines, Inc., G.R. No. 133763,
3
G.R. No. 127325, 19 March 1997, 270 SCRA 106. November 13, 2002, 391 SCRA 522, 533.

4
Id. at 157. 5
PH Credit Corporation v. Court of Appeals and Carlos M. Farrales,
G. R. No. 109648, November 22, 2001, 370 SCRA 155, 166-167.
5
Id. at 124.
6
Id.
6
Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321,
328-329; See also the more recent cases of Republic v. Nolasco, 7
Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479
G.R. No. 155108, 27 April 2005, 457 SCRA 400; and PH Credit SCRA 522, 529.
Corporation v. Court of Appeals, 421 Phil. 821 (2001).
8
G.R. No. 129754, September 23, 1997.
7
Supra note 2 at 124.
9
V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).
8
G.R. No. 129754.

9
Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to The Lawphil Project - Arellano Law Foundation
the Resolution, dated 23 September 1997, in G.R. No. 129754,
PIRMA v. COMELEC, pp. 2-3.

10
Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).

Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16

11

October 1997.

12
Santiago v. Comelec, supra note 2 at 170-171.

13
Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.

VELASCO, JR., J.:

1
G.R. No. 127535, March 19, 1997, 270 SCRA 106.

429

EN BANC
January 12, 2016
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
430
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.).
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
431
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
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 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
432
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,19except 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.
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
433
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.
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
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
434
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.69In 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
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
435
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:
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 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
436
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 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
437
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.
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.
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
438
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.124Respondent explains that EDCA is neither
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
439
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. 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.
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
440
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 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)
This Court has interpreted the faithful execution clause as an
obligation imposed on the President, and not a separate grant of
441
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.
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.
442
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 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 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
443
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.
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
444
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 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.
445
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 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
446
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
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.
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.
447
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,201the 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:
(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 agreementsmentioned 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,
448
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 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 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.
449
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.
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.
450
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
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 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
451
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.216Because 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 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:
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
452
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:
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
453
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 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 "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
454
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.
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"242and 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,
455
supplies, 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.
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
456
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. 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 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:
457
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 enteringand 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.
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
458
immigration laws.261The 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."
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 byself-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;
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
459
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.
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.
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
460
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 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 conductedbetween 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
461
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
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 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.
462
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 trainingof 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.
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.
Justice Brion's dissent argues that the presence of U.S. forces under
EDCA is "more permanent" in nature.289However, 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
463
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:
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
464
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 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 security300and 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. 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
465
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 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
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
466
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.
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
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 for a number of important
reasons.

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.
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:

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

467
 1947 MBA/ 1946 Treaty of
General Relations
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.
EDCA
EDCA, preamble:
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
468
1946 Treaty of Gen. Relations, appended to this Agreement,
Art. I: and may be further described in
implementing arrangements.
The United States of America
agrees to withdraw and EDCA, Art. V:
surrender, and does hereby
withdraw and surrender, all 1. The Philippines shall retain
rights of possession, ownership of and title to
supervision, jurisdiction, Agreed Locations.
control or sovereignty existing
and exercised by the United xxxx
States of America in and over
the territory and the people of
4. All buildings, non-
the Philippine Islands, except
relocatable structures, and
the use of such bases,
assemblies affixed to the
necessary appurtenances to
land in the Agreed
such bases, and the rights
Locations, including ones
incident thereto, as the United
altered or improved by United
States of America, by agreement
States forces, remain the
with the Republic of the
property of the
Philippines may deem necessary
Philippines.Permanent
to retain for the mutual
buildings constructed by United
protection of the Republic of the
States forces become the
Philippines and of the United
property of the Philippines, once
States of America. x x x.
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 came to deciding whether to
expand or to increase the number of bases, as the Philippines may
jurisdiction, control appended to this
be compelled to negotiate with the U.S. the moment the latter
or Agreement, and may be
requested an expansion of the existing bases or to acquire additional
sovereignty existing further described in
bases. In EDCA, U.S. access is purely at the invitation of the
and exercised by the implementing arrangements.
Philippines.
United States of
America in and over
1947 MBA/ 1946 EDCA the territory and the
Treaty of General people of the
Relations Philippine
Islands, except the
1947 MBA, Art.I(3): EDCA, preamble: use of such
bases, necessary
The Philippines agree Recognizing that all United appurtenances to such
to enter into States access to and use of bases, and the rights
negotiations with the facilities and areas will be at incident thereto, as the
United States at the the invitation of the United States of
latter's request, to Philippines and with full America, by
permit the United respect for the Philippine agreement with the
States to expand Constitution and Republic of the
such bases, to Philippine laws; Philippines may
exchange such bases deem necessary to
for other bases, to retain for the mutual
xxxx
acquire additional protection of the
bases, or relinquish Republic of the
EDCA. Art. II(4): Philippines and of the
rights to bases, as any
of such exigencies United States of
"Agreed America. x x x.
may be required by
Locations" means facilities
military necessity.
and areas that
are provided by the
1946 Treaty of Gen. Government of the Third, in EDCA, the Philippines is- guaranteed access over the entire
Relations, Art. I: Philippines through the area of the Agreed Locations. On the other hand, given that the U.S.
AFP and that United States had complete control over its military bases under the 1947 MBA, the
The United States of forces, United States treaty did not provide for any express recognition of the right of
America agrees to contractors, and others as access of Philippine authorities. Without that provision and in light of
withdraw and mutually agreed, shall have the retention of U.S. sovereignty over the old military bases, the U.S.
surrender, and does the right to access and use could effectively prevent Philippine authorities from entering those
hereby withdraw and pursuant to this Agreement. bases.
surrender, all rights of Such Agreed Locations may
possession, be listed in an annex to be
supervision,

469
 1947 MBA EDCA 1947 MBA EDCA

No equivalent EDCA, Art. III(5): 1947 MBA, EDCA, Art. III(4):

provision. Art.I(2):
The Philippine The Philippines hereby grants to the
Designated Authority The Philippines United States, through bilateral
and its authorized agrees security mechanisms, such as the
representative shall have to permit the MDB and SEB, operational
access to the entire area United States, control of Agreed
of the Agreed Locations. upon notice to Locations for construction
Such access shall be the Philippines, activities and authority to undertake
provided promptly to use such of such activities on, and make
consistent with those alterations and improvements to,
operational safety and bases listed in Agreed Locations. United States
security requirements in Annex B as the forces shall consult on issues
accordance with agreed United States regarding such construction,
procedures developed by determines to alterations, and
the Parties. be required by improvements based on the Parties'
military shared intent that the technical
necessity. requirements and construction
Fourth, in the bases agreement, the U.S. retained the right, power, standards of any such projects
and authority over the establishment, use, operation, defense, and 1947 MBA, undertaken by or on behalf of United
control of military bases, including the limits of territorial waters and Art. III(1): States forces should be consistent
air space adjacent to or in the vicinity of those bases. The only with the requirements and standards
standard used in determining the extent of its control was military of both Parties.
It is mutually
necessity. On the other hand, there is no such grant of power or
agreed that
authority under EDCA. It merely allows the U.S. to exercise
the United
operational control over the construction of Philippine-owned
Statesshall
structures and facilities:
have
the rights,
power and
authority
within the
bases which
are necessary
for the
establishment,
use, operation
and defense
thereof or

470
 appropriate sea areas of refueling of aircraft; bunkering of
for the control appropriate vessels; temporary maintenance of
thereof and all size and vehicles, vessels, and aircraft;
the rights, location for temporary accommodation of
power and periodic personnel; communications;
authority within maneuvers, for prepositioning of equipment, supplies,
the limits of additional and materiel; deploying forces and
territorial staging areas, materiel; and such other activities as
waters and air bombing and the Parties may agree.
space gunnery
adjacent to, or ranges, and
in the vicinity for such
of, the bases intermediate
which airfields as
are necessary may be
to provide required for
access to safe and
them, or efficient air
appropriate for operations.
their control. Operations in
such areas
shall be carried
Fifth, the U.S. under the bases agreement was given the authority to on with due
use Philippine territory for additional staging areas, bombing and regard and
gunnery ranges. No such right is given under EDCA, as seen below: safeguards for
the public
1947 MBA EDCA safety.

1947 MBA, EDCA, Art. III(1): 1947 MBA,

Art. VI: Art.I(2):
With consideration of the views of
The United the Parties, The Philippines
States shall, the Philippines hereby authorizes and agrees
subject to agrees that United States forces, to permit the
previous United States contractors, and United States,
agreement with vehicles, vessels, and aircraft operated upon notice to
the Philippines, by or for United States forces may the Philippines,
have the right conduct the following activities with to use such of
to use land respect to Agreed Locations: training; those
and coastal transit; support and related activities; bases listed in

471
 Annex B as borne craft, aircraft
the United and other vehicles on
States water, in the air or on
determines to land comprising
be required
by military
necessity.

Sixth, under the MBA, the U.S. was given the right, power, and
authority to control and prohibit the movement and operation of all Seventh, under EDCA, the U.S. is merely given temporary access to
types of vehicles within the vicinity of the bases. The U.S. does not land and facilities (including roads, ports, and airfields). On the other
have any right, power, or authority to do so under EDCA. 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
1947 MBA EDCA
to its military bases.
1947 MBA, Art. No equivalent
111(2)(c) provision. 1947 MBA EDCA

Such rights, power and 1947 MBA, Art. III(2)(b): EDCA, Art. III(2):
authority shall
include, inter Such rights, power and When requested, the
alia, the right, power authority shall Designated Authority of
and authority: x x x include, inter the Philippines shall assist
x to control (including alia, the right, power and in facilitating transit or
the right to prohibit) in authority: x x x x to temporary access by
so far as may be improve and deepen the United States forces to
required for the efficient harbors, channels, public land and facilities
operation and safety of entrances and (including roads, ports,
the bases, and within anchorages, and to and airfields), including
the limits of military construct or maintain those owned or controlled
necessity, anchorages, necessary roadsand by local governments, and
moorings, landings, bridges affording access to to other land and facilities
takeoffs, movements the bases. (including roads, ports,
and operation of and airfields).
ships and water-

472
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to construction, alteration, or improvements on the Philippine-owned
use any and all public utilities, services and facilities, airfields, ports, Agreed Locations.
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 1947 MBA EDCA
appears in EDCA. In fact, it merely extends to U.S. forces temporary
access to public land and facilities when requested: 1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Such rights, power and authority The Philippines hereby grants to

1947 MBA EDCA shall include, inter the United States, through
alia, the right, power and bilateral security
1947 MBA, Art. VII: EDCA, Art. III(2): authority: x x x x to construct, mechanisms, such as the MDB
install, maintain, and and SEB, operational control of
It is mutually agreed When requested, the employ on any base any Agreed Locations for
that the United States Designated Authority of type of facilities, weapons, construction activities
may employ and the Philippines shall substance, device, vessel or and authority to undertake
use for United States assist in facilitating vehicle on or under the ground, such activities on, and make
military forces any and transit or temporary in the air or on or under the alterations and improvements
all public utilities, access by United water that may be requisite or to, Agreed Locations. United
other services and States forces to public appropriate, including States forces shall consult on
facilities, airfields, land and facilities meteorological systems, aerial issues regarding such
ports, harbors, roads, (including roads, ports, and water navigation lights, construction, alterations, and
highways, railroads, and airfields), including radio and radar apparatus and improvements based on the
bridges, viaducts, those owned or electronic devices, of any Parties' shared intent that the
canals, lakes, rivers controlled by local desired power, type of emission technical requirements and
and streams in the governments, and to and frequency. construction standards of any
Philippines under other land and facilities such projects undertaken by or
conditions no less (including roads, ports, on behalf of United States forces
favorable than and airfields). should be consistent with the
those that may requirements and standards of
be applicablefrom time both Parties.
to time to the military
forces of the
Philippines. 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.
Ninth, under EDCA, the U.S. no longer has the right, power, and as seen below:
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

473
 subject to the mutual
agreement of the two
Governments, the United
States will reimburse the
Philippines for the
reasonable costs of
transportation and
1947 MBA EDCA
removal of any
occupants displaced or
1947 MBA, Art. XXII(l): No equivalent provision.
ejected by reason of the
condemnation or
Whenever it is necessary expropriation.
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 Eleventh, EDCA does not allow the U.S. to unilaterally bring into the
this Agreement, the country non-Philippine nationals who are under its employ, together
Philippines will institute with their families, in connection with the construction, maintenance,
and prosecute such or operation of the bases. EDCA strictly adheres to the limits under
condemnation or the VFA.
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,

474
 1947 MBA EDCA 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: 1947 MBA, Art. No equivalent
XIII(l)(a): provision.
1. "United States
personnel" means United The Philippines
States military and civilian consents that
personneltemporarily in the the United
territory of the Philippines in
connection with activities States shall have
approved by the Philippines, as the right to exercise
those terms are defined in the jurisdiction over the
VFA. following offenses:
(a) Any
x xx x offense committed by
any person within any
3. "United States base except where
contractors" means companies the offender and
and firms, and their employees, offended parties are
under contract or subcontract to both Philippine
or on behalf of the United States citizens (not members
Department of Defense. United of the armed forces of
States contractors are not the United States on
includedas part of active duty) or the
the definition of United States offense is against the
personnel in this security of the
Agreement, including within the Philippines.
context of the VFA.
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.

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:

475

1947 MBA
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.
In sum, EDCA is a far cry from a basing agreement as was
EDCA
understood by the people at the time that the 1987 Constitution was
adopted.
No equivalent provision.
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
400 hectares John Hay Air Station
476
 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.331In 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.
477
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 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 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.
478
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 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 sovereigntyand this is a
constant source of national embarrassment and an insult to
our national dignity and selfrespect as a nation;
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;
479
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 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
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
480
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 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
481
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
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.
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
482
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
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
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.
483
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 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"
484
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 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:
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. The essence of
1âwphi1
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
485
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
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
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
486
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 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
487
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 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.403Following 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 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
488
Significantly, the Philippines retains primary responsibility for security
with respect to the Agreed Locations.410Hence, 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
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
489
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.
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
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
490
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 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."450Those 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.
491
We note that a proper petition on 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.455Petitioners 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
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.
492
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.
WHEREFORE, we hereby DISMISS the petitions.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice
WE CONCUR:
 CERTIFICATION
See Separate Concurring
PRESBITERO J.
Opinion Pursuant to Section 13, Article VIII of the Constitution, I certify that
VELASCO
ANTONIO T. CARPIO the conclusions in the above Decision had been reached in
Associate Justice
Associate Justice consultation before the case was assigned to the writer of the opinion
of the Court.
I dissent:
I dissent: MARIA LOURDES P.A. SERENO
See my dissenting opinion
See my Dissenting Chief Justice
TERESITA J.
Opinion
LEONARDO-CA
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

Footnotes
I join the separate
I join J. carpio's opinion
concurring of J. Carpio No part.
DIOSDADO M. PERALTA *

LUCAS P. BERSAMIN
Associate Justice
Associate Justice 1
Petition ofSaguisag et al., rollo (G.R. No. 212426, Vol. I), pp.
3-66; Petition of Bayan et al., rollo (G.R. No. 212444, Vol. I),
MARIANO C. DEL MARTIN S. VILLARAMA, pp. 3-101.
CASTILLO JR.
Associate Justice Associate Justice 2
Petition of Saguisag et al., p. 5, ro/lo (G .R. No. 212426, Vol.
I), p. 7; Petition of Bayan et al., p. 5, rollo (G.R. No. 212444,
Vol. I), p. 7.
JOSE PORTUGAL JOSE CATRAL
PEREZ MENDOZA 3
Principally the following provisions under the Constitution:
Associate Justice Associate Justice Art. VII, Sec. 21; Art. XVIII, Sec. 25; Art. I; Art. II, Secs. 2, 7, &
8; Art. VI, Sec. 28(4); and Art. VIII, Sec. I. See Petition of
Saguisag et al., pp. 23-59, rollo (G.R. No. 212426, Vol. I), pp.
I join the dissenting
25-61; Petition ofBayan et al., rollo, pp. 23-93, (G.R. No.
opinion
BIENVENIDO L. REYES 212444, Vol. I), pp. 25-95.
ESTELA M. PERLAS-
Associate Justice
BERNABE
Associate Justice
4
Memorandum of the OSG, pp. 8-38, rol/o (G.R. No. 212426,
Vol. I), pp. 438-468.

I dissent. See separate No Part 5

The Protocol, Ceremony, History, and Symbolism of the
opinion FRANCIS H. Presidential Inauguration, THE PRESIDENTIAL MUSEUM
MARVIC M.V.F. LEONEN JARDELEZA* AND LIBRARY, available at <http://malacanang.gov.ph/1608-
Associate Justice Associate Justice the-protocol-ceremony-history-and-symbolism-of-the-
presidential-inauguration> (last visited 5 Nov. 2015).
493
6
CONSTITUTION, Art. VII, Sec. 1.
7
CONSTITUTION, Art. II, Sec. 4.
8
CONSTITUTION, Art. I.
9
CONSTITUTION, Art. II, Sec. 3.
10
Id.
11
CONSTITUTION, Art. II, Sec. 5.
12
See CONSTITUTION, Art. VII, Sec. 18 in relation to Art. II,
Secs. 3, 4 & 7; Executive Order No. 292 (Administrative Code
of 1987), Book IV (Executive Branch), Title VIII (National
Defense), Secs. l, 15, 26 & 33 [hereinafter Administrative
Code of 1987].
13
Administrative Code of 1987, Book IV (Executive Branch),
Title XII (Local Government), Sec. 3(5).
14
CONSTITUTION, Art. VII, Sec. 18.
15
See CONSTITUTION, Art. VII, Sec. 1 in relation
to Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Secs. 3(1) and 20; Akbayan Citizens
Action Party v. Aquino, 580 Phil. 422 (2008); Pimentel v.
Office of the Executive Secretary, 501 Phil. 303
(2005); People's Movement for Press Freedom v.
Manglapus, G.R. No. 84642, 13 September 1988
(unreported) (citing United States v. Curtiss-Wright Export
Corp., 299 U.S. 304 [1936]); JOAQUIN BERNAS, FOREIGN
RELATIONS IN CONSTITUTIONAL LAW, 101 (1995); IRENE
R. CORTES, THE PHILIPPINE PRESIDENCY: A STUDY OF
EXECUTIVE POWER 187 (1966); VICENTE G. SINCO,
PHILIPPINE POLITICAL LAW: PRINCIPLES AND
CONCEPTS 297 (10th ed., 1954).
16
See 1933 Montevideo Convention on the Rights and Duties
of States, Art. 1, 165 LNTS 19; JAMES CRAWFORD, THE
494
CREATION OF STA TES IN INTERNATIONAL LAW 61 (2nd
ed. 2007).
17
Vinuya v. Executive Secretary, 633 Phil. 538, 570 (2010)
(quoting the Dissenting Opinion of then Assoc. Justice
Reynato S. Puno in Secretary of Justice v. Lantion, 379 Phil.
165, 233-234 [2004]).
18
CONSTITUTION, Art. II, Sec. 7.
19
CONSTITUTION (1973, as amended), Art. VIII, Sec. 14(1).
20
CONSTITUTION (1973, as amended), Art. VIII, Sec. 16.
21
CONSTITUTION (1935), Art. VII, Sec. 10(7).
22
CONSTITUTION, Art. VII, Sec. 21.
23
Quoth the Court: "For the role of the Senate in relation to
treaties is essentially legislative in character; the Senate, as
an independent body possessed of its own erudite mind, has
the prerogative to either accept or reject the proposed
agreement, and whatever action it takes in the exercise of its
wide latitude of discretion, pertains to the wisdom rather than
the legality of the act. In this sense, the Senate partakes a
principal, yet delicate, role in keeping the principles of
separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true
to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring
power of the Senate, a healthy system of checks and
balances indispensable toward our nation's pursuit of political
maturity and growth." Bayan v. Zamora, 396 Phil. 623 (2000).
FOREIGN SERVICE INSTITUTE, AGREEMENTS ON
24
UNITED STATES MILITARY FACILITIES IN PHILIPPINE
MILITARY BASES 1947-1985 ix (Pacifico A. Castro revised
ed. 1985).
25
Treaty of Peace Between the United States of America and
the Kingdom of Spain, 10 Dec. 1898, 30 US Stat. 1754, T.S.
No. 343 (1898) (entered into force 11 Apr. 1899).
26
FOREIGN SERVICE INSTITUTE, supra note 24 at ix.
27
Id.
28
Id.
29
Id.
30
Id.
31
Id.; ROLAND G. SIMBULAN, THE BASES OF OUR
INSECURITY: A STUDY OF THE US MILITARY BASES IN
THE PHILIPPINES 13 (2nd ed. 1985).
32
Hare-Hawes-Cutting Act, ch. I I, Sec. 2(1), 47 US Stat. 761
(1933) According to the law: "Sec. 2. The constitution
formulated and drafted shall be republican in form, shall
contain a bill of rights, and shall, either as a part thereof or in
an ordinance appended thereto, contain provisions to the
effect that, pending the final and complete withdrawal of
the sovereignty of the United States over the Philippine
Islands -(1) The Philippine Islands recognizes the right of
the United States xx x to maintain military and other
reservations and armed forces in the Philippines xx x."
33
Hare-Hawes-Cutting Act, Secs. 5 & 10. According to the
law: "Sec. 5. All the property and rights which may have
been acquired in the Philippine Islands by the United
States under the treaties mentioned in the first section of this
Act, except such land or other property as has heretofore
been designated by the President of the United States for
military and other reservations of the Government of the
United States x x x are hereby granted to the government of
the Commonwealth of the Philippine Islands when
constituted.xx xx." "Sec. 10. On the 4th day of July,
immediately following the expiration of a period of ten
495
years from the date of the inauguration of the new
government under the constitution provided for in this
Act, the President of the United States shall by
proclamation withdraw and surrender all right of
possession, supervision, jurisdiction, control,
or sovereignty then existing and exercised by the United
States in and over the territory and people of the Philippine
Islands, including all military and other reservations of the
Government of the United States in the Philippines (except
such land or property reserved under section 5 as may
be redesignated by the President of the United States not
later than two years after the date of such
proclamation)." See FOREIGN SERVICE INSTITUTE, supra
note 24, at ix; SIMBULAN, supra note 31.
34
Philippine Independence Act, US Pub. L. No. 73-127, Secs.
5 & 10, 48 US Stat. 456 (1934) [hereinafter Philippine
Independence Act]. According to the law: " SEC. 10. (a) On
the 4th day of July immediately following the expiration of
a period of ten years from the date of the inauguration of
the new government under the constitution provided for in
this Act the President of the United States shall by
proclamation withdraw and surrender all right of
possession, supervision, jurisdiction, control,
or sovereignty then existing and exercised by the United
States in and over the territory and people of the Philippine
Islands, including all military and other reservations of the
Government of the United States in the Philippines (except
such naval reservations and fueling stations as are
reserved under section 5) xx x." See FOREIGN SERVICE
INSTITUTE, supra note 24.
Philippine Independence Act, Secs. 5 & IO; FOREIGN
35
SERVICE INSTITUTE, supra note 24.
36
Philippine Independence Act, Sec. 10.
FOREIGN SERVICE INSTITUTE, supra note 24, at x;
37
SIMBULAN, supra note 31 at 13-14.
38
See Agreement Between the Republic of the Philippines 45
FOREIGN SERVICE INSTITUTE, supra note 24, at xii-xv.
and the United States of America Concerning Military Bases,
preamble, 14 Mar. 1947, 43 UNTS 271 (entered into force 26 46
Id., at xiii.
Mar. 1947) [hereinafter 1947 Military Bases Agreement];
FOREIGN SERVICE INSTITUTE, supra note 24, at x. 47
Id., at xii.
39
Treaty of General Relations between the Republic of the 48
Id., at xiii.
Philippines and the United States of America, Art. I, 4 Jul.
1946, 7 UNTS 3 (1946) (entered into force 22 Oct. 1946) 49
Id.
[hereinafter 1946 Treaty of General Relations]. According to
the treaty: "The United States of America agrees to withdraw
and surrender, and does hereby withdraw and surrender, all
50
Id.
rights of possession, supervision, jurisdiction, control or
sovereignty existing and exercised by the United States of 51
Id., at xiii-xiv.
America in and over the territory and the people of the
Philippine Islands, except the use of such bases, necessary 52
Id.
appurtenances to such bases, and the rights incident thereto,
as the United States of America, by agreement with the 53
Id.
Republic of the Philippines may deem necessary to retain for
the mutual protection of the Republic of the Philippines and of 54
Republic Act No. 9 -Authority of President to Enter into
the United States of America. x x x." The Philippine Senate Agreement with US under Republic of the Phil. Military
concurred in this treaty (S. Res. 11, 1st Cong. [1946]). See Assistance Act (1946). According to Section 1 thereof:
also: Nicolas v. Romulo, 598 Phil. 262 (2009). "The President of the Philippines is hereby authorized to
enter into agreement or agreements with the President of
40
FOREIGN SERVICE INSTITUTE, supra note 24, at x- the United States, or with any of the agencies or
xi; Bayan v. Zamora, supra note 23. instrumentalities of the Government of the United
States, regarding military assistance to the armed forces
41
194 7 Military Bases Agreement. of the Republic of the Philippines, in the form of transfer of
property and information, giving of technical advice and
42
S. Res. 29, 1st Cong. (1946); Philippine instrument of lending of personnel to instruct and train them, pursuant
ratification was signed by the President on 21 Jan. 1948 and to the provisions of United States Public Act Numbered Four
the treaty entered into force on 26 Mar. 1947; Nicolas v. hundred and fifty-four, commonly called the 'Republic of the
Romulo, supra note 39. Philippines Military Assistance Act,' under the terms and
conditions provided in this Act."
FOREIGN SERVICE INSTITUTE, supra note 24, at xi;
43

SIMBULAN, supra note 31, at 76-79. 55

1947 Military Bases Agreement, Art. 1 (3); FOREIGN
44
SERVICE INSTITUTE, supra note 24, at xii; SIMBULAN,
supra note 31, at 78-79.
Agreement Between the Government of the Republic of the
Philippines and the Government of the United States of
America on Military Assistance to the Philippines, 45 UNTS 4
7 (entered into force 21 Mar. 1947) [hereinafter 1947 Military
Assistance Agreement].

496
 FOREIGN SERVICE INSTITUTE, supra note 24, at xi;
56
SIMBULAN, supra note 31, at 79-89.
57
1947 Military Assistance Agreement, Sec. 6.
58
Exchange of Notes Constituting an Agreement Extending
the Agreement Between the Government of the Republic of
the Philippines and the Government of the United States of
America on Military Assistance to the Philippines, 26 Jun.
1953, 213 UNTS 77 (entered into force 5 Jul.
1953) reproduced in FOREIGN SERVICE INSTITUTE, supra
note 24, at 197-203. See Mutual Logistics Support Agreement
(21 Nov. 2007).
See generally: People v. Nazareno, 612 Phil. 753
(2009) (on the continued effectivity of the agreement).
59
See Mutual Defense Treaty between the Republic of the
Philippines and the United States of America, 30 Aug. 1951,
177 UNTS 133 (entered into force 27 Aug. 1952) [hereinafter
1951 MDT]. According to its preamble: "The Parties to this
Treaty x x x Desiring further to strengthen their present efforts
to collective defense for the preservation of peace and
security pending the development of a more comprehensive
system of regional security in the Pacific Area x x x hereby
agreed as follows[.]" See: Bayan v. Zamora, supra note 23.
60
S. Res. 84, 2°d Cong. (1952); FOREIGN SERVICE
INSTITUTE, supra note 24, at 193-194; The Philippine
instrument of ratification was signed by the President on 27
August 1952 and it entered into force on the same date upon
the exchange ofratification between the Parties (Philippines
and U.S.), and was proclaimed by the President by virtue of
Proc. No. 341, S. 1952.
Nicolas v. Romulo, supra note 39 (citing U.S. Congressional
61
Record, 82nd Congress, Second Session, Vol. 98 - Part 2,
pp. 2594-2595).
62
1951 MDT, Art. II.
497
63
1951 MDT, Arts. IV-V.
COLONEL PATERNO C. PADUA, REPUBLIC OF THE
64
PHILIPPINES UNITED STATES DEFENSE COOPERATION:
OPPORTUNITIES AND CHALLENGES, A FILIPINO
PERSPECTIVE 6 (20l 0).
Bayan v. Zamora, supra note 23; People's Movement for
65
Press Freedom v. Manglapus, supra note 15.
See Treaty of Friendship, Cooperation and Security
66
Between the Government of the Republic of the Philippines
and the Government of the United States of America, 27 Aug.
1991 (rejected by the Senate on 16 Sept. 1991).
Id., Art. VII; Supplementary Agreement Two to the Treaty of
67
Friendship, Cooperation and Security, Arts. I & II(9).
68
Bayan v. Zamora, supra note 23.
Bayan v. Zamora, supra note 23; Joint Report of the
69
Committee on Foreign Relations and the Committee oi1
National Defense and Security reproduced in SENATE OF
THE PHILIPPINES, THE VISITING FORCES AGREEMENT:
THE SENA TE DECISION 206 (1999); Lim v. Executive
Secretary, 430 Phil. 555 (2002).
70
Agreement regarding the status of U.S. military and civilian
personnel, Exchange of notes between the DFA and the U.S.
Embassy in Manila on Apr. 2, and June 11 and 21, 1993,
Hein's No. KA V 3594 (entered into force 21 June 1993)
[hereinafter Status of Forces Agreement of 1993]. The
agreement was extended on 19 September 1994; on 28 April
1995 (See Hein's No. KAV 4245); and 8 December
1995 (See Hein's No. KA v 4493). See also R. CHUCK
MASON, STATUS OF FORCES AGREEMENT (SOFA):
WHAT Is IT, AND How HAS IT BEEN UTILIZED? 14 (2012).
Joint Report of the Committee on Foreign Relations and the
71
Committee on National Defense and Security reproduced
in SENATE OF THE PHILIPPINES, supra note 69; Lim v.
Executive Secretary, supra note 69; Bayan v. Zamora, supra
note 23.
72
Agreement Between the Government of the Republic of the
Philippines and the Government of the United States of
America Regarding the Treatment of United States Armed
Forces Visiting the Philippines, Phil.-U.S., 10 Feb. 1998, TIAS
No. 12931 (entered into force 1 Jun. 1999) [hereinafter VFA
I], reproduced in SENATE OF THE PHILIPPINES, supra, at
257-266 (1999); Lim v. Executive Secretary, supra note 69.
73
VFA I, preamble. See: Lim v. Executive Secretary, supra
note 69. In Lim, we explained that "It is the VFA which gives
continued relevance to the MDT despite the passage of
years. Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces
in the event of an attack by a common foe."
74
Bayan v. Zamora, supra note 23, at 637.
75
VFA I; Lim v. Executive Secretary, supra note 69.
Agreement between the Government of the United States of
76
America and the Government of the Republic of the
Philippines Regarding the Treatment of Republic of the
Philippines Personnel Visiting the United States of America,
Phil.-U.S., 9 Oct. 1998, TIAS No. 12931 [hereinafter VFA II].
77
Senate Resolution No. 18, 27 May 1999 reproduced
in SENATE OF THE PHILIPPINES, supra note 63, at 185-
190; Bayan v. Zamora, supra note 23.
78
Lim v. Executive Secretary, supra note 69.
79
Id.
80
Mutual Logistics Support Agreement Between the
Department of Defense of the United States of America and
the Department of National Defense of the Republic of the
498
Philippines, Preamble, 21 Nov. 2002 [hereinafter 2002
MLSA]. According to the preamble thereof, the parties "have
resolved to conclude" the agreement in light of their "desir[ e]
to further the interoperability, readiness, and effectiveness of
their respective military forces through increased logistic
cooperation in accordance with the RP-US Mutual Defense
Treaty, RP-US Visiting Forces Agreement or the RP-US
Military Assistance Agreement." Consequently, Article II of the
agreement provides that: "[it] shall be implemented, applied
and interpreted by the Parties in accordance with the
provisions of the Mutual Defense Treaty, the Visiting Forces
Agreement or the Military Assistance Agreement and their
respective constitutions, national laws and regulations."
81
2002 MLSA, Preamble.
82
2002 MLSA, Art. I.
83
2002 MLSA, Art. IV(l)(a); PADUA, supra note 64, at 1-2.
84
See Mutual Logistics Support Agreement Between the
Department of Defense of the United States of America and
the Department of National Defense of the Republic of the
Philippines, Art. IX, 8 Nov. 2007 (applied provisionally on 8
Nov. 2007; entered into force 14 Jan. 2009) [hereinafter 2007
MLSA]; Extension of the Mutual Logistics Support Agreement
(RP-US-01) Between the Department of Defense of the
United States of America and the Department of National
Defense of the Republic of the Philippines (entered into force
6 Nov. 2012).
Memorandum of the OSG, pp. 8, 24 rollo (G.R. No. 212426,
85
Vol. I), pp. 438, 454.
86
See Note No. 1082 of the U.S. Embassy to the DFA dated
25 June 2014, Annex B of the Memorandum of the
OSG, rollo (G.R. No. 212426, Vol. I), p. 477; Memorandum of
the OSG, p. 8, rollo (G.R. No. 212426, Vol. I), p. 438.
87
Statement of Secretary Albert F. def Rosario On the signing
of the PH-U.S. EDCA, DEPARTMENT OF FOREIGN
AFFAIRS (28 Apr. 2014) available at
<https://www.dfa.gov.ph/index.php/newsroom/dfareleases/26
94-statement-of-secretary-albert-f-del-rosario-on-the-signing-
of-the-philippines-us-enhanced-defense-cooperation-
agreement> (last visited 5 Nov. 2015); Frequently Asked
Questions (FAQ) on the Enhanced Defense Cooperation
Agreement, DEPARTMENT OF FOREIGN AFFAIRS (28 Apr.
2014) available at
<https://www.dfa.gov.ph/index.php/newsroom/dfa-
releases/2693-frequently-asked-questions-faqs-on-the-
enhanced-defense-cooperation-agreement> (last visited 5
Nov. 2015).
EDCA; Memorandum ofOSG, p. 3, rollo (G.R. No. 212426,
88
Vol. I), p. 433
89
Instrument of Ratification, Annex of A of the Memorandum
ofOSG, rollo, p. 476.
90
Oral Arguments TSN, 25 November 2014, pp. 119-120.
91
Rollo pp.865-867, G.R. No. 212444
92
According to the Resolution: "Be it further resolved that this
resolution expressing the strong sense of the Senate be
formally submitted to the Supreme Court through the Chief
Justice." Rollo (G.R. No. 212444), p. 867.
93
Francisco v. House of Representatives, 460 Phil. 830, 914
(2003).
94
See: Chavez v. Judicial and Bar Council, G.R. No. 202242,
17 July 2012, 676 SCRA 579; Tagolino v. House of
Representatives Electoral Tribunal, G.R. No. 202202, 19
March 2013, 693 SCRA 574; Gutierrez v. House of
Representatives Committee on Justice, 658 Phil. 322
(2011); Francisco v. House of
499
Representatives, supra; Demetria v. Alba, 232 Phil. 222
(1987).
95
The Constitution provides: "SECTION I. 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."
96
Angara v. Electoral Commission, 63 Phil. 139, 156-158
(1936).
97
Gutierrez v. House of Representatives Committee on
Justice, supra note 94; Francisco v. House of
Representatives, supra note 94; Tanada v. Angara, 338 Phil.
546 (1997); Oposa v. Factoran, G.R. No. 101083, 30 July
1993, 224 SCRA 792, 809-810 (citing Llamas v. Orbos, 279
Phil. 920 [1991]; Bengzon v. Senate Blue Ribbon
Committee, G.R. No. 89914, 20 November 1991, 203 SCRA
767; Gonzales v. Macaraig, G.R. No. 87636, 19 November
1990, 191 SCRA 452; Coseteng v. Mitra, G.R. No. 86649, 12
July 1990, 187 SCRA 377; Daza v. Singson, 259 Phil. 980
[1989]; and I RECORD, CONSTITUTIONAL COMMISSION
434-436 [1986]).
98
Oposa v. Factoran, supra, at 97.
Morfe v. Mutuc, 130 Phil. 415, 442 (1968); Angara v.
99
Electoral Commission, supra note 96, at 178.
100
See: Francisco v. House of Representatives, supra note
93; United States v. Raines, 362 U.S. 17 (1960); and Angara
v. Electoral Commission, supra note 96.
101
Demetria v. Alba, supra note 94, at 226.
 Francisco v. House of Representatives, supra note 93, at
102
922-923.
Ashwander v. Tennessee Valley Authority, 297 U.S. 288,
103
346-348 (1936).
Francisco v. House of Representatives, supra note 93, at
104
923.
105
Id., at 922.
Southern Hemisphere Engagement Network, Inc. v. Anti-
106
Terrorism Council, 646 Phil. 452, 471 (2010); David v.
Macapagal-Arroyo, 522 Phil. 705, 753 (2006); Francisco v.
House of Representatives, supra note 93 at 892; Angara v.
Electoral Commission, supra note 96, at 158.
107
Memorandum ofOSG, p. 6, rollo, p. 436.
108
Rollo (G.R. No. 212444), pp. 865-867.
Southern Hemisphere Engagement Network, Inc. v. Anti-
109
Terrorism Council, supra note 106, at 479.
110
Information Technology Foundation of the Philippines v.
Commission on Elections, 499 Phil. 281, 304-305 (2005)
(citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227
(1937]); Southern Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council, supra note 106, at 480; David v.
Macapagal-Arroyo, supra note I 06, at 753 (2006); Francisco
v. House of Representatives, supra note 93, 879-880; Angara
v. Electoral Commission, supra note 96, at 158.
Information Technology Foundation of the Philippines v.
111
Commission on Elections, supra (citing Aetna Life Insurance
Co. v. Hayworth, 300 U.S. 227 (1937]); Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 106, at 480; Lozano v. Nograles, 607 Phil. 334, 340
[2009]).
500
Angara v. Electoral Commission, supra note 96, at 158-
112
159.
Memorandum of OSG, supra note 80. See also Note No.
113
1082, supra note 86.
Almario v. Executive Secretary, G.R. No. 189028, 16 July
114
2013, 701 SCRA 269, 302; Bayan Muna v. Romulo, 656 Phil.
246 (2011).
115
Funa v. CSC Chairman, G.R. No. 191672, 25 November
2014; Almario v. Executive Secretary, supra note 114, at
302; Bayan Muna v. Romulo, supra note 114, at 265; Bayan
v. Zamora supra note 23; Francisco v. House of
Representatives, supra note 93, 895-896.
Bayan Muna v. Romulo, supra note 114 at 265; Pimentel v.
116
Office of the Executive Secretary, supra note 15; Joya v.
Presidential Commission on Good Government, G.R. No.
96541, 24 August 1993, 225 SCRA 568.
Funa v. CSC Chairman, supra note 115 Almario v.
117
Executive Secretary, supra note 114 at 302; Southern
Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra note 106, at 472; Francisco v. House of
Representatives, supra note 93 at 895-896.
Southern Hemisphere Engagement Network, Inc. v. Anti-
118
Terrorism Council, supra note 106.
119
Bayan Muna v. Romulo, supra note 114, at 265; Francisco
v. House of Representatives, supra note 93, at 893.
Bayan Muna v. Romulo, supra note 114, at 266-
120
267; Akbayan Citizens Action Party v. Aquino, supra note
15; Francisco v. House of Representatives, supra note
93; Tanada v. Tuvera, 220 Phil. 422 (1985).
Petition of Saguisag et al., p. 20, rollo (G.R. No. 212426,
121
Vol. I), p. 22; Memorandum of Saguisag et al., p.
15, rol/o (G.R. No. 212426, Vol. II), p. 985; Petition ofBayan et
al., p. 9, rollo (G.R. No. 212444, Vol. I), p. 11; Memorandum
of Bayan et al., pp. 19, 23, rol/o (G.R. No. 212444, Vol. I), pp.
583, 587.
Petition of Saguisag et al., p. 10, rollo (G.R. No. 212426,
122
Vol. I), p. 12; Petition of Bayan et al., pp. 9-10, rollo (G.R. No.
212444, Vol. I), pp. 11-12; Memorandum ofBayan et al., pp.
19, 23, rollo (G.R. No. 212444, Vol. I), pp. 583, 587.
123
Oral Arguments TSN, 18 November 2014, pp. 19-20.
124
Consolidated Comment of the OSG, p. 4, rollo (G.R. No.
212426, Vol. I), p. 241; Memorandum of OSG, p.
7, rol/o (G.R. No. 212426, Vol. I), p. 437.
125
Bayan v. Zamora, supra note 23.
Bayan v. Zamora, supra note 23 (citing Pascual v.
126
Secretary of Public Works, 110 Phil. 331 [1960]; Maceda v.
Macaraig, G.R. No. 88291, 31May1991, 197 SCRA
771; Lozada v. Commission on Elections, 205 Phil. 283
[1983]; Dumlao v. Commission on Elections, 184 Phil. 369
[1980]; Gonzales v. Marcos , 160 Phil. 637 [1975]).
See: Bayan v. Zamora, supra note 23 (citing Bugnay Const.
127
& Development Corp. v. Laron, 257 Phil. 245 [1989]).
128
Lozano v. Nograles, supra note 111, at 342-343.
129
Petition ofBayan et al., p. 10, ro/lo (G.R. No. 212444, Vol.
I), p. 12; Memorandum of Bayan et al., pp. 19-20, rollo (G.R.
No. 212444, Vol. I), pp. 583-584.
Consolidated Comment of the OSG, pp. 3-4, rollo (G.R. No.
130
212444, Vol. I), pp. 240-241; Memorandum of the OSG, pp.
4-7, rollo (G.R. No. 212444, Vol. I), pp. 434-437.
Pimentel v. Office of the Executive Secretary, supra note
131
15; Bayan v. Zamora, supra note 23; Philippine Constitution
501
Association. v. Enriquez, G.R. No. 113105, 113174, 113766,
113888, 19 August 1994, 235 SCRA 506; Gonzales v.
Macaraig, supra note 97; Mabanag v. Lopez Vito, 78 Phil. 1
(1947).
132
Philippine Constitution Association. v. Enriquez, supra.
Pimentel v. Office of the Executive Secretary, supra note
133
15; Philippine Constitution Association. v. Enriquez, supra.
Mabanag v. Lopez Vito [Dis. Op., J. Perfecto], supra note
134
131, at 35.
Pimentel v. Office of the Executive Secretary, supra note
135
15; Bayan v. Zamora, supra note 23; Philippine Constitution
Association. v. Enriquez, supra note 131.
Pimentel v. Office of the Executive Secretary, supra note
136
15.
137
Bayan v. Zamora, supra note 23.
138
Petition of Saguisag et al., pp. 21-22, rol/o (G.R. No.
212426, Vol. I), pp. 23-24; Memorandum of Saguisag et
al., pp. 15-17, rollo (G.R. No. 212426, Vol. II), pp. 985-987;
Petition ofBayan et al., pp. 6, rollo (G.R. No. 212444, Vol. I),
pp. 8; Memorandum ofBayan et al., pp. 19, 23, rollo (G.R. No.
212444, Vol. I), pp. 583, 587.
Consolidated Comment of the OSG, pp. 4-5, rollo (G.R. No.
139
212444, Vol. I), pp. 241-242; Memorandum of the OSG, pp.
7-8, rollo (G.R. No. 212444, Vol. I), pp. 437-438.
140
Bayan Muna v. Romulo, supra note 114, at 265
(citing Constantino v. Cuisia, 509 Phil. 486 [2005]; Agan v.
Philippine International Air Terminals Co., Inc., 450 Phil. 744
[2003]; Del Mar v. Philippine Amusement and Gaming
Corporation, 400 Phil. 307 [2000]; Tatad v. Garcia, 313 Phil.
296 [1995]; Kilosbayan v. Guingona, G.R. No. 113375, 5 May
1994, 232 SCRA 110); Integrated Bar of the Phil. v. CONSTITUTION, Art. X, Sec. 16: "The President shall
152

Zamora, 392 Phil. 618 (2000). exercise general supervision over autonomous regions to
ensure that the laws are faithfully executed."
Kilosbayan, Inc. v. Guingona [Con. Op., J. Feliciano],
141

supra, at 155-156 (1995) (cited in Magallona v. Ermita, 671 Ilusorio v. Ilusorio, 564 Phil. 746 (2007); Gonzalez v.
153

Phil. 243 (2011); Paguia v. Office of the President, 635 Phil. Hongkong & Shanghai Banking Corp., 562 Phil. 841 (2007).
568 [2010]; Francisco v. House of Representatives, supra
note 93, at 899). Metropolitan Manila Development Authority v. Viron
154

Transportation Co., Inc., 557 Phil. 121 (2007).

Memorandum ofOSG, supra note 80. See also Note No.
142

1082, supra note 86. La Perla Cigar & Cigarette Factory v. Capapas, 139 Phil.
155

451 (1969).
Government of the Philippine Islands v. Springer, 50 Phil.
143

259 (1927). 156

In re: R. McCulloch Dick, 3 8 Phil. 211 (1918).

144
Id. 157
Almario v. Executive Secretary, supra note 114.

145
Id. 158
Administrative Code of 1987, Book IV, Sec. 38.

CONSTITUTION, Art. VII, Sec. 5; CONSTITUTION (1973,

146 159
Concurring Opinion of J. Carpio, Abakada Gura Party List
as amended), Art. VII, Sec. 7; CONSTITUTION (1935, as v. Purisima, 584 Phil. 246 (2008).
amended), Art. VII, Sec. 7.
160
Id.
147
CONSTITUTION, Art. VII, Sec. 5.
161
Id. at 297.
148
Almario v. Executive Secretary, supra note 114.
Philippine Constitution Association v. Enriquez, supra note
162

CONSTITUTION (1973, as amended), Art. VII, Sec. 10:

149
131.
"The President shall have control of the ministries."
Government of the Philippine Islands v. Springer, supra
163

CONSTITUTION (1935, as amended), Art. VII, Sec. 10(1 ):

150
note 143.
"The President shall have control of all executive
departments, bureaus or offices, exercise general supervision 164
See CONSTITUTION, Art. VII, Secs. 17 & 18.
over all local governments as may be provided by law, and
take care that the laws be faithfully executed." 165
Dissenting Opinion of Justice Arturo D. Brion, p. 17.
151
Administrative Code of 1987, Book III, Title I, Sec. 1. 166
Id., at 18.

167
Id., at 17-19.

502
168
Dissenting Opinion of Justice Arturo D. Brion, pp. 19-20.
169
Vinuya v. Romulo, supra note 17.
Memorandum of Bayan et al., pp. 29-32, rol/o (G.R. No.
170
212444), pp. 593-596; Memorandum of Saguisag et al., pp.
17-29, 35-37, rol/o (G.R. No. 212426, Vol. II), pp. 987-999,
1005-1007.
171
The pertinent text of SR 105 is reproduced below:
WHEREAS, the treaty known as RP-US EDCA
(Enhanced Defense Cooperation Agreement) is at
present subject of Supreme Court proceedings on the
question of whether this treaty is valid and effective,
considering that the Senate has not concurred with
the treaty;
WHEREAS, the Office of the President argues that
the document is not a treaty but is instead an
executive agreement that allegedly does not require
Senate concurrence;
WHEREAS, the only constitutional ground for the
position taken by the Executive is the mere inclusion
of the term "executive agreement" in the Constitution
which provides: "All cases involving the
constitutionality of an ... executive agreement ... "
(Article VIII, Section 4, paragraph 2) as one of items
included in the list of cases which the Supreme Court
has power to decide.
WHEREAS, there is no other provision in the
Constitution concerning a socalled executive
agreement, and there is no mention at all of its
definition, its requirements, the role of the Senate, or
any other characteristic of, or protocol for, any such
so-called "executive agreement";
503
WHEREAS, "executive agreement" is a term
wandering alone in the Constitution, bereft of
provenance and an unidentified constitutional
mystery;
WHEREAS, in stark contrast to the lone mention of
the term "executive agreement," the Constitution
provides categorically:
(a) "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", (Article VII, Section 21);
(b) "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 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", (Article XVIII, Section 25);
WHEREAS, on the one hand, the Constitution is clear
and categorical that Senate concurrence is absolutely
necessary for the validity and effectivity of any treaty,
particularly any treaty that promotes for foreign
military bases, troops and facilities, such as the
EDCA;
WHEREAS, under the rules of constitutional and
statutory construction, the two constitutional
provisions on Senate concurrence are specific
provisions, while the lone constitutional provision
merely mentioning an "executive agreement" is a
general provision, and therefore, the specific
 provisions on Senate concurrence prevail over the
general provision on "executive agreement";
WHEREAS, the Senate is aware of and obeys the
ruling of the Supreme Court in Pimentel v. Office of
the Executive Secretary, 462 SCRA 622 (2005);
WHEREAS, the ruling cited above does not apply to
the EDCA case, because the Senate makes no
attempt to force the President of the Philippines to
submit the EDCA treaty for concurrence by the
Senate, by this Resolution, the Senate merely takes a
definitive stand on the non-negotiable power of the
Senate to decide whether a treaty will be valid and
effective, depending on the Senate concurrence[;]
WHEREFORE, be it hereby resolved by the Senate
that the RP-US EDCA treaty requires Senate
concurrence, in order to be valid and effective;
Be it further resolved, That this Resolution expressing
the strong sense of the Senate be formally submitted
to the Supreme Court through the Chief Justice.
Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735
172
SCRA 102; Land Bank v. Atlanta Industries, Inc., G.R. No.
193796, 2 July 2014, 729 SCRA 12; Roxas v. Ermita, G.R.
No. 180030, June 10, 2014; Bayan Muna v. Romulo, supra
note 114; Vinuya v. Romulo, supra note 17; Nicolas v.
Romulo, supra note 39; Akbayan Citizens Action Party v.
Aquino, supra note 15; Suplico v. NEDA, 580 Phil. 301
(2008); Neri v. Senate Committee on Accountability of Public
Officers and Investigations, 572 Phil. 554 (2008); Abaya v.
Ebdane, 544 Phil. 645 (2007); Senate of the Philippines v.
Ermita, 522 Phil. I (2006); Pimentel v. Office of the Executive
Secretary, supra note 15; Bayan v. Zamora, supra note note
23; Chavez v. PCGG, 360 Phil. 133 (1998).
173
Republic v. Quasha, 150-B Phil. 140 (1972); Adolfo v. Court
of First Instance o/Zambales, 145 Phil. 264
504
(1970); Commissioner of Internal Revenue v. Guerrero, 128
Phil. 197 (1967); Gonzales v. Hechanova, 118 Phil. 1065
(1963); Commissioner of Customs v. Eastern Sea
Trading, 113 Phil. 333 (1961); USAFFE Veterans Ass'n., Inc.
v. Treasurer of the Phil., 105 Phil. 1030 (1959); Uy Matiao &
Co., Inc. v. City of Cebu, 93 Phil. 300 (1953); Abbot
Laboratories v. Agrava, 91 Phil. 328 (1952).
174
Nicolas v. Romulo, supra note 39.
175
Chavez v. Judicial and Bar Council, supra note
94; Francisco v. House of Representatives, supra note 93
(quoting J.M Tuason & Co., Inc. v. Land Tenure
Administration, 142 Phil. 719 [1970]; citing Baranda v.
Gustilo, 248 Phil. 205 [1988]; Luz Farms v. Secretary of the
Department of Agrarian Reform, 270 Phil. 151 [1990]; Ordillo
v. Commission on Elections, 270 Phil. 183 [1990]).
Chavez v. Judicial and Bar Council, supra note 94; Ang
176
Bagong Bayani-OFW v. Commission on Elections, 412 Phil.
308 (2001) (citing J.M Tuason & Co., Inc. v. Land Tenure
Administration, supra; Gold Creek Mining Corp. v.
Rodriguez, 66 Phil 259, 264 [1938]; RUBEN C. AGPALO,
STATUTORY CONSTRUCTION 311 [ 1990]).
Chavez v. Judicial and Bar Council, supra note
177
94; Francisco v. House of Representatives, supra note 93
(quoting J.M Tuason & Co., Inc. v. Land Tenure
Administration, supra; citing Baranda v. Gustila, supra, at
770; Luz Farms v. Secretary of the Department of Agrarian
Reform, supra; Ordillo v. Commission on
Elections, supra); Sarmiento v. Mison, 240 Phil. 505
(1987); Gold Creek Mining Corp. v. Rodriguez, supra.
Francisco v. House of Representatives, supra note 93
178
(quoting J.M Tuason & Co., Inc. v. Land Tenure
Administration, supra).
Ang Bagong Bayani-OFW v. Commission on
179
Elections, supra note 176.
 Ang Bagong Bayani-OFW v. Commission on
180 191
See IV RECORD, CONSTITUTIONAL COMMISSION 759,
Elections, supra note 176 (quoting the Separate Opinion of (18 Sep. 1986): "By inequalities, is the Commissioner
Justice Mendoza in Civil Liberties Union v. Executive referring to the one-sided provisions, the onerous conditions
Secretary, 272 Phil. 147 [1991]). of the RP-US Bases Agreement?," Nicolas v. Romulo, supra
note 39, at 280 (2009).
OED Online, available at
181

<http://www.oed.com/view/Entry/5460>, accessed on 28 See Treaty of General Relations between the Republic of

192

October 2015; See also Merriam-Webster Online the Philippines and the United States of America, October 22,
Dictionary, "allow," available at 1946, Art. 1 (1946); Philippine Independence Act (Tydings-
<http://www.merriamwebster.com/dictionary/allow>, accessed McDuffie Act), Pub.L. 73-127, 48 Stat. 456, (24 March 1934),
on 28 October 2015. Secs. 5 and 10; FOREIGN SERVICE INSTITUTE, supra note
24, at ix-x.
182
BLACK'S LAW DICTIONARY (2nd ed).
193
Land Bank v. Atlanta Industries, Inc., supra note
OED Online, available at
183 172; Bayan Muna v. Romulo, supra note 114; Nicolas v.
<http://www.oed.com/view/Entry/92970?rskey=JDa01 Y Romulo, supra note 39; Neri v. Senate Committee on
&result=6>, accessed on 28 October 2015; See also Merriam- Accountability of Public Officers and Investigations, supra
Webster Online Dictionary, available at note 172; DBM-PS v. Kolonwel Trading, 551 Phil. 1030
<http://www.merriamwebster.com/dictionary/in>, accessed on (2007); Abaya v. Ebdane, supra note 172; Republic v.
28 October 2015. Quasha, supra note 173; Adolfo v. Court of First Instance of
Zambales, supra note 173; Commissioner of Internal
184
G.R. No. 151445, 11April2002. Revenue v. Guerrero, supra note 173; Gonzales v.
Hechanova, supra note 173; Commissioner of Customs v.
Eastern Sea Trading, supra note 173; USAF FE Veterans Ass
In the words of the Court: "The present Constitution
185
'n., Inc. v. Treasurer of the Phil., supra note 173; Uy Matiao &
contains key provisions useful in determining the extent to
Co., Inc. v. City of Cebu, supra note 173; Abbot Laboratories
which foreign military troops are allowed in Philippine
v. Agrava, supra note 173; II RECORD, CONSTITUTIONAL
territory." Lim v. Executive Secretary, supra note 69.
COMMISSION, 544-546 (31 July 1986); CORTES, supra note
15, at 190; SINCO, supra note 15, at 303-305.
186
Memorandum ofOSG, pp. 14-27, rollo, pp. 444-457.
CONSTITUTION, Art. VIII (Judicial Department), Secs. 4(2)
194
187
Dissenting Opinion of Justice Arturo D. Brion, p. 29. & 5(2)(a); CONSTITUTION (l 973, as amended), Art. X (The
Judiciary), Secs. 2(2) & 5(2)(a), Art. XVII (Transitory
188
Id., at 31. Provisions), Sec. 12; CONSTITUTION (l 935), Ordinance
Appended to the Constitution or "Parity Amendment."
189
Id.
Republic Act No. 9184 (Government Procurement Reform
195

Francisco v. House of Representatives, supra note 93

190
Act) (2003), Sec. 4; Administrative Code of 1987, Book II,
(quoting JM Tuason & Co., Inc. v. Land Tenure Sec. 18(2)(a); Presidential Decree No. 1464, as amended
Administration, supra note 175). (Tariff and Customs Code of 1978), Sec. 402(f); Republic Act
No. 1789 (Reparations Law) (1957), Sec. 18.; Commonwealth
505
Act No. 733 (Acceptance of Executive Agreement Under Title
IV of [United States] Public Law 371-79th Congress) (1946).
196
Neri v. Senate Committee on Accountability of Public
Officers and Investigations, supra note 172; Republic v.
Quasha, supra note 173; Commissioner of Internal Revenue
v. Guerrero, supra note 173; Gonzales v. Hechanova, supra
note 173; Commissioner of Customs v. Eastern Sea
Trading, supra note 173; USAFFE Veterans Ass'n., Inc. v.
Treasurer of the Phil., supra note 173; Abbot Laboratories v.
Agrava, supra note 173.
II RECORD, CONSTITUTIONAL COMMISSION, supra
197
note 184.
Bayan Muna v. Romulo, supra note I 14. See also SINCO
198
supra note 15.
See generally: Nicolas v. Romulo, supra note 39; Lim v.
199
Executive Secretary, supra note 69.
200
See: Akbayan Citizens Action Party v. Aquino, supra note I
5; Pimentel v. Office of the Executive Secretary, supra note
15. See CONSTITUTION, Art. VII, Sec. I in relation
to Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Secs. 3(1) and 20; SINCO, supra note
15, at 297.
201
Pimentel v. Office of the Executive Secretary, supra note
15. See CONSTITUTION, Art. VII, Sec. 1 in relation
to Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Secs. 3(1) and 20; SINCO, supra note
15, at 298.
202
See: CONSTITUTION, Art. VII, Sec. 1 in relation
to Administrative Code of 1987, Book III (Office of the
President), Title I (Powers of the President), Sec. 1 and Book
IV (Executive Branch), Title I (Foreign Affairs), Secs. 3(1) and
20 and Title III (Justice), Sec. 35(10); Pimentel v. Office of the
Executive Secretary, supra note 15 (on ratification of
506
treaties); Vinuya v. Executive Secretary, supra note I 7 (on
espousing claims against foreign governments); Abaya v.
Ebdane, supra note 172 (on contracting foreign
loans); People's Movement for Press Freedom v.
Manglapus, supra note 15 (on treaty negotiations with foreign
states); SINCO, supra note 15, at 298.
203
See SINCO, supra note 15, at 297-298.
Commissioner of Customs v. Eastern Sea Trading, supra
204
note 173.
Bayan Muna v. Romulo, supra note 114. See also SINCO,
205
supra note 15.
Commissioner of Customs v. Eastern Sea Trading, supra
206
note 173.
II RECORD, CONSTITUTIONAL COMMISSION 544-546
207
(31 July 1986). See also Miriam Defensor
Santiago, International Agreements in Constitutional Law: The
Suspended RP-China (ZTE) Loan Agreement, 53 ATENEO
L.J. 537, 539 (2008).
208
Bayan Muna v. Romu/o, supra note 114, at 261; Gonzales
v. Hechanova, supra note 173; Commissioner of Customs v.
Eastern Sea Trading, supra note 173; II RECORD,
CONSTITUTIONAL COMMISSION 544-546 (31 July 1986);
CORTES, supra note 15; SINCO, supra note 15.
209
See, e.g.: Bayan Muna v. Romulo, supra note 114 (on the
transfer or surrender of US nationals in the Philippines who
may be sued before international tribunals); Nicolas v.
Romulo, supra note 39 (on agreement concerning the
detention of a member of the U.S. Armed Forces, who was
accused of committing a crime in the Philippines); Adolfo v.
Court of First Instance ofZambales, supra note 173 (on
exchange of notes pursuant to the 1947 MBA); Treaty of
General Relations Between the Republic of the Philippines
and the United States of America (1946).
210
See, e.g.: Republic v. Quasha, supra note 216
See: Bayan Muna v. Romulo, supra note 114.
173; Commissioner of Internal Revenue v. Guerrero, supra
note 173; Abbot Laboratories v. Agrava, supra note 173 (on Pharmaceutical and Health Care Association v. Duque, 561
217

the interpretation of the provision in the Philippine Patent Law
of 1947 concerning the reciprocity measure on priority rights
to be granted to U.S. nationals); Uy Matiao & Co., Inc. v. City
of Cebu, supra note 173; Republic Act No. 9 - Authority of
President to Enter into Agreement with US under Republic of
the Phil. Military Assistance Act (1946).
Phil. 386 (2007); Lim v. Executive Secretary, supra note
69; Secretary of Justice v. Lantion, supra note 17; Philip
Morris, Inc. v. Court of Appeals, G.R. No. 91332, 16 July
1993, 224 SCRA 576.
See: Bayan Muna v. Romulo, supra note 114
218

(affirming Adolfo v. Court of First Instance of Zambales, supra

See, e.g.: Land Bank v. Atlanta Industries, Inc., supra note
211
note 173); CIVIL CODE, Art. 7.
172 (on foreign loan agreement); Bayan Muna v.
Romulo, supra note 114; DBM-PS v. Kolonwel Trading, supra See: Bayan Muna v. Romulo, supra note 114; Nicolas v.
219

note 193 (on foreign loan agreement); Abaya v. Romulo, supra note 39; Gonzales v. Hechanova, supra note
Ebdane, supra note 172 (on foreign loan 173; CIVIL CODE, Art. 7.
agreement); Commissioner of Customs v. Eastern Sea
Trading, supra note 173 (on foreign trade and financial 220
See CONSTITUTION, Art. VIII, Sec. 5(2); CIVIL CODE, Art.
agreements); USAFFE Veterans Ass'n., Inc. v. Treasurer of
7.
the Phil., supra note 173 (on conversion of unspent fund as a
foreign loan). But see on limitations: Gonzales v.
Hechanova, supra note 173.
221
CONSTITUTION, Art. II, Sec. 8.

212
See generally: Bayan v. Zamora, supra note 23; Philippe
222
CONSTITUTION, Art. VI, Sec. 28(2).
Gautier, 1969 Vienna Convention, Article 2 -Use of Terms,
in THE VIENNA CONVENTIONS ON THE LAW OF 223
CONSTITUTION, Art. VI, Sec. 28(4).
TREATIES: A COMMENTARY, VOL. I 35-36 (Olivier Corten
& Pierre Klein eds. 2011). 224
CONSTITUTION, Art. VII, Sec. 20.

213
See generally: Bayan v. Zamora, supra note 23; Philippe 225
CONSTITUTION, Art. XVIII, Sec. 25
Gautier, 1969 Vienna Convention, Article 2 -Use of Terms,
in THE VIENNA CONVENTIONS ON THE LAW OF II RECORD, CONSTITUTIONAL COMMISSION 544 (3 I
226

TREATIES: A COMMENTARY, VOL. I 37 (Olivier Corten & July 1986).

Pierre Klein eds. 2011) (quoting Customs regime between
Germany and Austria, Advisory Opinion, 1931 PCIJ, II RECORD, CONSTITUTIONAL COMMISSION 545 (31
227

Ser. NB no. 41, p. 47). July 1986).

214
Gonzales v. Hechanova, supra note 173. II RECORD, CONSTITUTIONAL COMMISSION 545 (31
228

July 1986).
Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v.
215

Court of First Instance of Zambales, supra note 173).

507
229
SINCO, supra note 15, at 297. See: Vinuya v. Executive
Secretary, supra note 17 (on espousal of the claims of
Philippine nationals against a foreign government); Pimentel
v. Office of the Executive Secretary, supra note 15 (on
ratification of international agreements); Secretary of Justice
v. Lant ion, supra note 17 (on temporarily withholding of the
right to notice and hearing during the evaluation stage of the
extradition process); People's Movement/or Press Freedom v.
Manglapus, supra note 15 (on the imposition of secrecy in
treaty negotiations with foreign countries).
230
Vinuya v. Executive Secretary, supra note 17.
231
Lim v. Executive Secretary, supra note 69.
232
Nicolas v. Romulo, supra note 39.
233
Nicolas v. Romulo, supra note 39, at 291.
Bayan Muna v. Romulo, supra note 114, at 273. See also:
234
Nicolas v. Romulo, supra note 39; Adolfo v. Court of First
Instance of Zambales, supra note 173; Abbot Laboratories v.
Agrava, supra note 173. Senate Resolution No. 18, dated 27
May 1999, which embodies the concurrence of the Senate in
the VFA, stresses in its preamble that "nothing in this
Resolution or in the VFA shall be construed as authorizing
the President of the Philippines alone to bind the
Philippines to any amendment of any provision of the
VFA." (Emphases Supplied)
235
Lim v. Executive Secretary, supra note 69, at 571.
The provision states: "As used in this Agreement, 'United
236
States personnel' means United States military and civilian
personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government. x xx."
(Emphases supplied)
The provision states: "It is the duty of United States
237
personnel to respect the laws of the Republic of the
508
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." (Emphases supplied)
238
Lim v. Executive Secretary, supra note 69, at 572.
239
Lim v. Executive Secretary, supra note 69, at 575.
240
According to the agreement: "(H]e will be detained at the
first floor, Rowe (JUSMAG) Building, U.S. Embassy
Compound in a room of approximately IO x 12 square feet.
He will be guarded round the clock by U.S. military personnel.
The Philippine police and jail authorities, under the direct
supervision of the Philippine Department of Interior and Local
Government (DILG) will have access to the place of detention
to ensure the United States is in compliance with the terms of
the VFA."
241
Nicolas v. Romulo, supra note 39, at 287.
242
Dissenting Opinion of Justice Marvic M.V.F. Leonen, p. 1.
243
EDCA, Art. V(l) and (4).
244
Dissenting Opinion of Justice Leonen, supra note 242, p.2.
245
Id.
Concurring and Dissenting Opinion of Justice Teresita J.
246
Leonardo-De Castro, p. 25.
247
Lim v. Executive Secretary, supra note 69, at 575.
248
Dissenting Opinion of Justice Leonen, supra note 242.
249
Id.
 Memorandum ofOSG, pp. 14-27, rollo (G.R. No. 212426),
250
pp. 444-457.
Memorandum of Saguisag et al., pp. 22-23, 38-
251
49, rollo (G.R. No. 212426, Vol. II), pp. 992-993, 1008-1019;
Memorandum of Bayan et al., pp. 35-41, rollo (G.R. No.
212444), pp. 599-605.
252
EDCA, Art. II(l ).
253
EDCA, Art. II(2).
254
EDCA, Art. II(3).
255
EDCA, Art. VIII(l ).
256
According to this provision: "l. This Agreement deepens
defense cooperation between the Parties and maintains and
develops their individual and collective capacities, in
furtherance of Article II of the MDT, which states that 'the
Parties separately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity
to resist armed attack,' and within the context of the VFA. This
includes: xxxx (b) Authorizing access to Agreed
Locations in the territory of the Philippines by United States
forces on a rotational basis, as mutually determined by the
Parties.
257
According to this provision: "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.
258
VFA I, Art. I.
259
See: Djumantan v. Domingo, 310 Phil. 848 (1995).
509
260
Djumantan v. Domingo, 310 Phil. 848, 854 (1995).
Commonwealth Act No. 613 (The Philippine Immigration
261
Act of 1940, as amended).
Commonwealth Act No. 613 (The Philippine Immigration
262
Act of 1940, as amended), Secs. 10 & 11.
263
Commonwealth Act No. 613 (The Philippine Immigration
Act of 1940, as amended), Sec. 29 & 30. Under Section 29,
the following classes of aliens shall be excluded from entry
into the Philippines: (1) Idiots or insane persons and persons
who have been insane; (2) Persons afflicted with a loathsome
or dangerous contagious disease, or epilepsy; (3) Persons
who have been convicted of a crime involving moral turpitude;
(4) Prostitutes, or procurers, or persons coming for any
immoral purposes; (5) Persons likely to become, public
charge; (6) Paupers, vagrants, and beggars; (7) Persons who
practice polygamy or who believe in or advocate the practice
of polygamy; (8) Persons who believe in or
advocate the overthrow by force and violence of
the Government of the Philippines, or of constituted lawful
authority, or who disbelieve in or are opposed to organized
government, or who advocate the assault or assassination
of public officialsbecause of their office, or who advocate or
teach principles, theories, or ideas contrary to the
Constitution of the Philippines or advocate or teach the
unlawful destruction of property, or who are members of or
affiliated with any organization entertaining or teaching such
doctrines; (9) Persons over fifteen years of age, physically
capable of reading, who cannot read printed matter in
ordinary use in any language selected by the alien, but this
provision shall not apply to the grandfather, grandmother,
father, mother, wife, husband or child of a Philippine citizen or
of an alien lawfully resident in the Philippines; (10) Persons
who are members of a family accompanying an excluded
alien, unless in the opinion of the Commissioner of
Immigration no hardship would result from their admission;
(11) Persons accompanying an excluded person who is
helpless from mental or physical disability or infancy, when
the protection or guardianship of such accompanying person
or persons is required by the excluded person, as shall be
determined by the Commissioner oflmmigration; (12) Children
under fifteen years of age, unaccompanied by or not coming
to a parent, except that any such children may be admitted in
the discretion of the Commissioner oflmmigration, if otherwise
admissible; (13) Stowaways, except that any stowaway may
be admitted in the discretion of the Commissioner of
Immigration, if otherwise admissible; (14) Persons coming to
perform unskilled manual labor in pursuance of a promise or
offer of employment, express or implied, but this provision
shall not apply to persons bearing passport visas authorized
by Section Twenty of this Act; (15) Persons who have been
excluded or deported from the Philippines, but this
provision may be waived in the discretion of the
Commissioner of Immigration: Provided, however, That the
Commissioner of Immigration shall not exercise his discretion
in favor of aliens excluded or deported on the ground of
conviction for any crime involving moral turpitude or for any
crime penalized under Sections [ 45] and [ 46] of this Act or
on the ground of having engaged in hoarding, black-
marketing or profiteering unless such aliens have previously
resided in the Philippines immediately before his exclusion or
deportation for a period of ten years or more or are married to
native Filipino women; (16) Persons who have been removed
from the Philippines at the expense of the Government of the
Philippines, as indigent aliens, under the provisions of section
[ 43] of this Act, and who have not obtained the consent of the
Board of Commissioners to apply for readmission; and (17)
Persons not properly documented for admission as may be
required under the provisions of this Act. (Emphasis supplied)
264
Djumantan v. Domingo, supra note 259.
Administrative Code of 1987, Book III (Office of the
265
President), Title I (Powers of the President), Secs. 8 & 11 in
relation to Commonwealth Act No. 613 (The Philippine
Immigration Act of 1940), Sec. 52 and Act. No. 2711 (Revised
Administrative Code of 1917), Sec. 69. See: Djumantan v.
Domingo, supra note 259; Teo Tungv. Mach/an, 60 Phil. 916
(1934).
510
See: Commonwealth Act No. 613 (The Philippine
266
Immigration Act of 1940, as amended), Secs. 6, 12, 28 &
29; Djumantan v. Domingo, supra note 259; Salazar v.
Achacoso, 262 Phil. 160 (1990); RONALDO P. LEDESMA,
DEPORT A TI ON PROCEEDINGS: PRACTICE,
PRECEDENTS, AND PROCEDURES 96 (2013 ).
267
Commonwealth Act No. 613 (The Philippine Immigration
Act of 1940, as amended), Sec. 37. The provision
enumerates as follows: (1) Any alien who enters the
Philippines xx x by means of false and misleading
statements or without inspection and admission by the
immigration authorities x x x; (2) Any alien who enters the
Philippines xx x, who was not lawfully admissible at the
time of entry; (3) Any alien who, x x x, is convicted in the
Philippines and sentenced for a term of one year or more for
a crime involving moral turpitude committed within five
years after his entry to the Philippines, or who, at any time
after such entry, is so convicted and sentenced more than
once; (4) Any alien who is convicted and sentenced for a
violation of the law governing prohibited drugs; (5) Any alien
who practices prostitution or is an inmate of a house of
prostitution or is connected with the management of a house
of prostitution, or is a procurer; (6) Any alien who becomes a
public charge within five years after entry from causes not
affirmatively shown to have arisen subsequent to entry; (7)
Any alien who remains in the Philippines in violation of any
limitation or condition under which he was admitted as a
non-immigrant; (8) Any alien who believes in, advises,
advocates or teaches the overthrow by force and
violence of the Government of the Philippines, or of
constituted law and authority, or who disbelieves in or is
opposed to organized government or who advises,
advocates, or teaches the assault or assassination of public
officials because of their office, or who advises, advocates, or
teaches the unlawful destruction of property, or who is a
member of or affiliated with any organization entertaining,
advocating or teaching such doctrines, or who in any manner
whatsoever lends assistance, financial or otherwise, to the
dissemination of such doctrines; (9) Any alien who commits
any of the acts described in sections [ 45] and [ 46] of this Act,
independent of criminal action which may be brought against
him: xx x; (10) Any alien who, at any time within five years
after entry, shall have been convicted of violatingthe
provisions of the Philippine Commonwealth Act [653],
otherwise known as the Philippine Alien Registration Act of
1941, or who, at any time after entry, shall have been
convicted more than once of violating the provisions of the
same Act;
(11) Any alien who engages in profiteering,
hoarding, or blackmarketing, independent of any
criminal action which may be brought against him;
(12) Any alien who is convicted of any offense
penalized under Commonwealth Act [473], otherwise
known as the Revised Naturalization Laws of the
Philippines, or any law relating to acquisition of
Philippine citizenship; (13) Any alien who defrauds his
creditor by absconding or alienating properties to
prevent them from, being attached or executed.
(Emphasis supplied)
Republic Act No. 10173, Sec. 34. According to the
268
provision, "[i]f the offender is an alien, he or she shall, in
addition to the penalties herein prescribed, be deported
without further proceedings after serving the penalties
prescribed."
See: Secretary of Justice v. Lantion, supra note 17.
269
According to the Court: "An equally compelling factor to
consider is the understanding of the parties themselves to the
RP-US Extradition Treaty x x x. The rule is recognized that
while courts have the power to interpret treaties, the meaning
given them by the departments of government particularly
charged with their negotiation and enforcement is accorded
great weight. x x x This interpretation by the two governments
cannot be given scant significance. It will be presumptuous for
the Court to assume that both governments did not
understand the terms of the treaty they concluded."
(Emphasis supplied)
511
See Status of Forces Agreement of 1993, supra note 70.
270
The International Law Commission explains that the
subsequent practice of states in the application of the treaty
may be taken into account in ascertaining the parties'
agreement in the interpretation of that treaty. This is "well-
established in the jurisprudence of international tribunals"
even before the Vienna Convention on the Law of Treaties
was concluded. See International Law Commission, Draft
Articles on the Law of Treaties with Commentaries, 1966(II)
Y.B.I.L.C. 187, at 221-222 (citing Russian Claim for
Indemnities [Russia/Turkey], XI R.I.A.A. 421, 433 [1912] [Nov.
11]; Competence of the !LO to Regulate Agricultural
Labour, 1922 P.C.1.J. [ser. B] No. 2, 39 [Aug.
12]; Interpretation of Article 3, paragraph 2, of the Treaty of
Lausanne, 1925 P.C.l.J. [ser. B] No. 12, 24 [Nov.
21]; Brazilian Loans, 1929 P.C.1.J. (ser. A) No. 21, 119 [Jul.
12]; and Corfu Channel [U.K. v. Albania], 19491.C.J. 4, 25
[Apr. 9]).
271
Lim v. Executive Secretary, supra note 69, at 571-572.
272
Nicolas v. Romulo, supra note 39, at 284.
273
Id.
274
Lim v. Executive Secretary, supra note 69, at 575; Joint
Report of the Committee on Foreign Relations and the
Committee on National Defense and Security reproduced
in SENATE OF THE PHILIPPINES, supra note 69, at 206.
275
Status of Forces Agreement of 1993, supra note 70.
According to Note No. 93-2301dated11June1993 of the DFA
to the U.S. Embassy, "The [DFA] xx x has the honor to
reaffirm its position that all U.S. military and civilian personnel
present in the Philippines participating in activities undertaken
in relation to the Mutual Defense Treaty will be accorded the
same status as the U.S. Embassy's technical and
administrative personnel who are qualified to enter the
Philippines under existing Philippine laws. The Department
further proposes that the procedures as well as the
arrangements for these MDT-related activities are to be . Memorandum ofSaguisag et al., pp. 43-46, ro//o (G.R. No.
287

mutually agreed upon by the MDB, subject to the guidelines 212426, Vol. II), pp. 1013-1016.
of the Council of Ministers."
Concurring and Dissenting Opinion of Justice Teresita J.
288

276
Lim v. Executive Secretary, supra note 69. See also Joint Leonardo-De Castro, p. 24.
Report of the Committee on Foreign Relations and the
Committee on National Defense and Security reproduced 289
Dissenting Opinion of Justice Brion, pp. 48-51.
in SENATE OF THE PHILIPPINES, supra note 69, at 230-
231. Aileen S.P. Baviera, Implications of the US-Philippines
290

Enhanced Defense Cooperation Agreement, ASIA PACIFIC

277
Joint Report of the Committee on Foreign Relations and the BULLETIN No. 292, 9 May 2014.
Committee on National Defense and Security reproduced
in SENATE OF THE PHILIPPINES, supra note 69, at 205- See CONSTITUTION, Art. VII, Sec. 18 in relation to Art. II,
291

206, 231. Sec. 3.

278
EDCA, Art. II(I). See Administrative Code of 1987, Book IV (Executive
292

Branch), Title I (Foreign Affairs), Sec. 3(1) in relation to

279
EDCA, Art. I(3 ). CONSTITUTION, Art. VII, Sec. 1 and Art. II, Sec. 3; Akbayan
Citizens Action Party v. Aquino, supra note 15; Pimentel v.
280
EDCA, Art. III(l ). Office of the Executive Secretary, supra note 15; Bayan v.
Zamora, supra note 23.
281
EDCA, Art. III(4) & (6).
293
Vinuya v. Executive Secretary, supra note 17.
282
EDCA, Art. VI(3).
294
Id.
283
EDCA, Art. VII(l ).
See generally Joint Report of the Committee on Foreign
295

284
EDCA, Art. VII(2).
285
According to the Agreed Minutes of the Discussion between
the former Philippine Vice-President I Secretary of Foreign
Affairs Teofisto T. Guingona, Jr. and U.S. Assistant Secretary
of State for East Asian and Pacific Affairs James Kelly, both
countries approved the Terms of Agreement of the Balikatan
exercises. See: rollo (G.R. No. 151445), pp. 99-100.
Relations and the Committee on National Defense and
Security reproduced in SENATE OF THE PHILIPPINES,
supra note 69, at 206. According to the report: "The Mutual
Defense Board programs an average of 10 to 12 exercises
annually. Participating U.S. personnel, numbering from 10 to
more than 1,000, stay in Philippine territory from four days to
four weeks, depending on the nature of the exercise."
Memorandum ofBayan, pp. 47-51, rollo (G.R. No. 212444),
296

286
Lim v. ExecuHve Secretary, supra note 69, at 565-566. pp. 611-615

297
EDCA, Art. III(l).

512
298
EDCA, Art. IV(4).
299
EDCA, Art. IV(5).
300
Commonwealth Act No. 541.
301
Republic Act No. 10951.
302
Executive Order No. 184 (2015).
Republic Act No. 5487 - The Private Security Agency
303
Law, as amended by P.D. No. 11.
Glenn Defense: SBMA suspension doesn't cover all our
304
functions, RAPPLER, available at <http://www.rapp !er
.com/nation/ 16688-glenn-defense-sbma-suspension-does-
not-cover-all-functions> (last visited 3 December 2015).
305
Glenn Defense: SBMA suspension doesn't cover all our
.functions, RAPPLER, available at
<http://www.rappler.com/nation/16688-glenn-defense-sbma-
suspension-does-not-cover-all-functions> (last visited 3
December 2015); Norman Bordadora, US Navy contractor
liable for Subic waste dumping, PHILIPPINE DAILY
INQUIRER, available at
<http://globalnation.inquirer.net/63765/us-navy-
contractorliable-for-subic-waste-dumping> (last visited 3
December 2015); Matikas Santos, US navy contractor
dumped millions of liters of wastes in Subic, PHILIPPINE
DAILY INQUIRER, available at
<http://globalnation.inquirer.net/63649/us-navy-contractor-
dumped-millions-of-liters-of-wastes-in-subic> (last visited 3
December 2015).
Vincent Cabreza, US Embassy says dumping of untreated
306
waste in Subic not condoned, PHILIPPINE DAILY INQUIRER,
available at <http://globalnation.inquirer.net/60255/us-
embassy-says-dumping-of-untreated-waste-in-subic-not-
condoned> (last visited 3 December 2015).
513
307
Robert Gonzaga, Contractor could face sanctions from US
navy for violations, PHILIPPINE DAILY INQUIRER, available
at <http://globalnation.inquirer.net/56622/contractor-could-
face-sanctions-from-us-navy-for-violations> (last visited 3
December 2015).
308
Lim v. Executive Secretary, supra note 69, at 580.
309
See R.A. No. 10591 or the Comprehensive Firearms and
Ammunition Regulation Act. According to Section 4, Article II
thereof: In order to qualify and acquire a license to own
and possess a firearm or firearms and ammunition, the
applicant must be a Filipino citizen, at least twenty-one (21)
years old and has gainful work, occupation or business or has
filed an Income Tax Return (ITR) for the preceding year as
proof of income, profession, business or occupation. In
addition, the applicant shall submit the following certification
issued by appropriate authorities attesting the following: x x x
x." On the other hand, Section 5 states: "A juridical person
maintaining its own security force may be issued a
regular license to own and possess firearms and
ammunition under the following conditions: (a) It must
be Filipino-owned and duly registered with the Securities
and Exchange Commission (SEC); (b) It is current,
operational and a continuing concern; (c) It has completed
and submitted all its reportorial requirements to the SEC; and
(d) It has paid all its income taxes for the year, as duly
certified by the Bureau of Internal Revenue. x x x x. Security
agencies and LGUs shall be included in this category of
licensed holders but shall be subject to additional
requirements as may be required by the Chief of the PNP."
Finally, Section 22 expresses: "A person arriving in the
Philippines who is legally in possession of any firearm or
ammunition in his/her country of origin and who has
declared the existence of the firearm upon embarkation and
disembarkation but whose firearm is not registered in the
Philippines in accordance with this Act shall deposit the
same upon written receipt with the Collector of
Customs for delivery to the FEO of the PNP for safekeeping,
or for the issuance of a permit to transport if the person is a
competitor in a sports shooting competition. If the
importation of the same is allowed and the party in 316
EDCA, Art. IV(3).
question desires to obtain a domestic firearm license, the
same should be undertaken in accordance with the 317
EDCA, Art. IV(l).
provisions of this Act. If no license is desired or leave to
import is not granted, the firearm or ammunition in question 318
Such rights gleaned from Title II, Chapter I of the Civil Code
shall remain in the custody of the FEO of the PNP until are (Cojuangco v. Sandiganbayan, 604 Phil. 670 [2009] ): the
otherwise disposed of in accordance with law." (Emphasis right to possess, to use and enjoy, to abuse or consume, to
supplied) accessories, to dispose or alienate, to recover or vindicate,
and to the fruits.
310
Article 40 of the Labor Code, as amended,
provides: "Employment permit of non-resident 319
Memorandum of Saguisag et al., pp. 29-33, rollo (G.R. No.
aliens. Any alien seeking admission to the Philippines for 212426, Vol. II), pp. 999-1003; Memorandum ofBayan et
employment purposes and any domestic or foreign al., pp. 41-71, rol/o (G.R. No. 212444), pp.605-635.
employer who desires to engage an alien for employment in
the Philippines shall obtain an employment permit from
Memorandum ofSaguisag et al., pp. 33-35, rol/o (G.R. No.
320
the Department of Labor. The employment permit may be
212426, Vol. II), pp. 1003-1005.
issued to a non-resident alien or to the applicant
employer after a determination of the non-availability of a
person in the Philippines who is competent, able and
321
Id., pp. 1000-1001.
willing at the time of application to perform the services
for which the alien is desired. For an enterprise registered 322
Id., p. 1000. EDCA, Arts. I(l)(b), 1(2), 1(3), & IIl(4).
in preferred areas of investments, said employment
permit may be issued upon recommendation of the 323
Id., p. 1002.
government agency charged with the supervision of said
registered enterprise." (Emphasis supplied) 324
See generally CIVIL CODE, Arts. 427-429.

311
Supra notes 263 and 267. Memorandum ofSaguisag et al., pp. 33-35, rollo (G.R. No.
325

212426, Vol. II), pp. 1001-1002.

Memorandum ofSaguisag et al., pp. 25-29, rollo (G.R. No.
312

212426, Vol. 11), pp. 995-999. Memorandum ofSaguisag et al., pp. 33-35, rollo (G.R. No.
326

212426, Vol. II), pp. 1001-1002.

PH-US MDB and SEB Convenes, DEPARTMENT OF
313

NATIONAL DEFENSE, available at 327

CONSTITUTION, Art. XII, Sec. 7.
<http://www.dndph.org/press-releases/ph-us-mdb-and-seb-
convenes> (last visited 3 December 2015). P.D. No. 1227 - Punishing Unlawful Entry into Any Military
328

Base in the Philippines, Sec. 2.

314
EDCA, Art. IV(3).
IV RECORD, CONSTITUTIONAL COMMISSION 648 (15
329

315
EDCA, Art. IV(3). September 1986).

514
330
R.A. No. 7227. IV RECORD, CONSTITUTIONAL COMMISSION 637-639
346

(15 September 1986).

331
PADUA, supra note 64.
347
Id. at 638.
332
EDCA, Art. II(4).
348
Id. at 639.
Memorandum of OSG, p. 23, rollo (G.R. No. 212426), p.
333

453. IV RECORD, CONSTITUTIONAL COMMISSION 640-641

349

(15 September 1986).

IV RECORD, CONSTITUTIONAL COMMISSION 628-630
334

(15 September 1986). 350

Id. at 640.

335
Id. at 628. IV RECORD, CONSTITUTIONAL COMMISSION 641-645
351

(15 September 1986).

336
Id. at 629.
352
Id. at 643.
IV RECORD, CONSTITUTIONAL COMMISSION 630-631
337

(15 September 1986). 353

Id. at 644.

338
Id. at 630. IV RECORD, CONSTITUTIONAL COMMISSION 645-649
354

(15 September 1986).

339
Id. at 631.
355
Id. at 645.
IV RECORD, CONSTITUTIONAL COMMISSION 632-634
340

(15 September 1986). IV RECORD, CONSTITUTIONAL COMMISSION 649-652

356

(15 September 1986).

341
Id. at 632.
357
Id. at 650.
IV RECORD, CONSTITUTIONAL COMMISSION 634-635
342

(15 September 1986). 358

Id. at 651.

343
Id. at 634. 359
Id. at 652.

IV RECORD, CONSTITUTIONAL COMMISSION 635-636

344
IV RECORD, CONSTITUTIONAL COMMISSION 652-653
360

(15 September 1986). (15 September 1986).

345
Id. at 636. 361
Id.

515
 IV RECORD, CONSTITUTIONAL COMMISSION 653-654
362
Tydings-McDuffie Act, Section IO(a) Pub.L. 73-I27, 48 Stat.
379

(15 September 1986). 456 (enacted 24 March 1934).

363
Id. at 653. BLACK'S LAW DICTIONARY 770 (6th ed. I990). See
380

also J. Carpio's Dissenting Opinion in Liban v. Gordon, 654

364
Id. at 654. Phil. 680 (2011).

365
CIVIL CODE, Art. 419. Memorandum ofSaguisag, p. 56, rollo (G.R. No.2I2426), p.
381

594.
366
CIVIL CODE, Art. 420.
382
Id. at 596.
367
CIVIL CODE, Art. 433.
383
Id. at 460.
368
EDCA, Art. V.
384
G.R. No. 108813, 15 December 1994, 239 SCRA 224, 229.
369
EDCA, Art. II(4).
R.A. No. 6975 -Department of the Interior and Local
385

Roman Catholic Apostolic Administrator of Davao, Inc. v.

370 Government Act of 1990, Sec. 86; P.D. No. 531, Secs. 4, 5,
Land Registration Commission, 102 Phil. 596 (1957). and 6.

371
EDCA, Art. III(2).
386
Local Government Code of 1991, Sec. 444.

372
EDCA, Art. III(l ).
387
Local Government Code of 1991, Sec. 455.

373
EDCA, Art. III(4).
388
Rollo, (G.R. No. 212426), pp. 515-525.

374
EDCA, Art. III(5).
389
Id. at 597.

375
1947 MBA, IIl(2)(a).
390
Id.

v RECORD, CONSTITUTIONAL COMMISSION 240 (30

376
391
Id. at 598.
September 1986).
392
Id. at 599.
v RECORD, CONSTITUTIONAL COMMISSION 240-241
377

(30 September 1986). 393

Id. at 599, FN 76

378
Tañada v. Angara, supra note 97. 394
Id. at footnote 77.

395
EDCA, preamble.
516
396
See: Bayan Muna v. Romulo, supra note 114; Bayan v. 407
See BLACK'S LAW DICTIONARY 927 (9th ed. 2009).
Zamora, supra note 23; USAFFE Veterans Ass'n., Inc. v.
Treasurer of the Phil., supra note 173; Vienna Convention on 408
EDCA, Article 1(1 )(b ).
the Law of the Treaties, Art. 27 (on internal law and
observance of treaties) in relation to Art. 46 (on provisions of 409
Laurel v. Misa, 77 Phil. 856 (194 7).
internal law regarding competence to conclude treaties).
410
EDCA. Art. VI(2).
"Under EDCA, before constructions and other activities can
397

be undertaken, prior consent of the Philippines will have to be 411

EDCA, Art. VI(3).
secured through the Mutual Defense Board (MDB) and
Security Engagement Board (SEB) which were established
under the MDT and the VF A." . See Q&A on the Enhanced
412
Liwanagv. Hamill, 98 Phil. 437 (1956).
Defense Cooperation Agreement, OFFICIAL GAZETTE,
available at <http://www.gov.ph/2014/04/28/qna-on-the- 413
1947 MBA, Art. XIII.
enhanced-defense-cooperation-agreement> (last accessed 3
December 2015). 414
Bayan v. Zamora, supra note 23.

UNITED STATES DEPARTMENT OF DEFENSE,

398 415
Memorandum ofSaguisag, p. 72, rollo (G.R. No. 212426),
DOCTRINE FOR THE ARMED FORCES OF THE UNITED p. 610.
STATES: JOINT PUBLICATION 1, Chap. 1-18 (2013).
416
Id.
399
Id., at Chap. V-6.
417
Id.
400
See id., at Chap. V-2.
Charter of the United Nations, 24 October 1945, 1 UNTS
418

401
EDCA, Art. III(4). XVI.

402
EDCA, Art. III(4). 419
Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of
403
Sarmiento v. Mison, supra note 177. The case also International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3
formulated this principle as follows: "an express enumeration (1977) [hereinafter Geneva Convention Additional Protocol I];
of subjects excludes others not enumerated." Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-
404
Rebuttal of Commissioner Nolledo, supra note 362. International Armed Conflicts (Protocol II), 1125 UNTS 609
(1977).
Vienna Convention on Diplomatic Relations, Arts. 31-40,
405

500 U.N.T.S. 95 (1961).

420
Articles 48, 51(2) and 52(2), Protocol I, supra note 419.

406
See BLACK'S LAW DICTIONARY 1523 (9th ed. 2009). 1949 Geneva Convention (I) for the Amelioration of the
421

Condition of the Wounded and Sick in Armed Forces in the

517
Field, 12 August 1949, 75 UNTS 31; 1949 Geneva
Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, 12 August 1949, 75 UNTS 85; 1949 Geneva
Convention (III) Relative to the Treatment of Prisoners of War,
12 August 1949, 75 UNTS 135; 1949 Geneva Convention (IV)
Relative to the Protection of Civilian Persons in Time of War,
12 August 1949, 75 UNTS 287; Id.
JOHN WOODCLIFFE, THE PEACETIME USE OF
422
FOREIGN MILITARY INSTALLATIONS UNDER MODERN
INTERNATIONAL LAW 30 (1992).
433
Article I(g) thereof provides: "Agreed facilities and
locations" means those sites, installations, and
infrastructure to which the United States is authorized
access and use by Colombia in connection with activities
carried out within the framework of this Agreement.
434
Article 2(i) thereof provides: "agreed facilities and areas"
shall mean areas, facilities, buildings or structures in the
territory of the Republic of Poland, owned by the Republic
of Poland, and used by United States forces with the consent
of the Republic of Poland.
Article I thereof provides: "Agreed Facilities and Areas"
435

423
Id. means the facilities and areas in the territory of
Australia provided by Australia which may be listed in Annex
424
Id. at 32. A appended to this Agreement, and such other facilities
and areas in the territory of Australia as may be provided by
425
Id. Australia in the future, to which United States Forces,
United States Contractors, dependants, and other United
States Government personnel as mutually agreed, shall have
426
Id.
the right to access and use pursuant to this Agreement.
JEAN-MARIE HENCKAERTS AND LOUISE OOSWALD-
427
Article 1(7) thereof provides: "Agreed facilities and areas"
436
BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN
means the facilities and areas in the territory of
LAW- VOLUME I: RULES 34-36 (2005)
Afghanistan provided by Afghanistan at the
locations listed in Annex A, and such other facilities and
428
Art. 52, Protocol I, supra note 419. areas in the territory of Afghanistan as may be provided by
Afghanistan in the future, to which United States forces,
429
Art. 48, Id .. United States contractors, United States contractor
employees, and others as mutually agreed, shall have
430
Art. 4., Id. the right to access and use pursuant to this Agreement.

Memorandum ofSaguisag, pp. 66-70, rol/o (G.R. No.

431
US-Bulgaria Defense Cooperation Agreement, Arts. II(6) &
437

212426), pp. 604-608.
Article 11(6) thereof provides: "Agreed facilities and
432
areas" means the state owned facilities and areasin the
territory of the Republic of Bulgaria listed in Annex A,
IV(l); US-Colombia Defense Cooperation Agreement, Art. IV;
US-Poland Status of Forces Agreement, Art. 3(2); US-
Australia Force Posture Agreement, Arts. I, IV;
US-Bulgaria Defense Cooperation Agreement, Art. IV(5);
438

and such other state owned facilities and areas, as may US-Colombia Defense Cooperation Agreement, Art. IV; US-
be mutually agreed by the Parties.

518
Poland Status of Forces Agreement, Art. 3(1); US-Australia 453
MDT, Arts. III, IV, and V.
Force Posture Agreement, Art. IV(7).
454
Rollo, p. 464.
US-Bulgaria Defense Cooperation Agreement, Art. IV(7);
439

US-Colombia Defense Cooperation Agreement, Arts. IV(7), 455

EDCA, Art. IV(6).
XI; US-Poland Status of Forces Agreement, Art. 3(6); US-
Australia Force Posture Agreement, Art. IV(8). 456
Rollo, pp. 34-35.

US-Bulgaria Defense Cooperation Agreement, Arts. II(6),

440
457
Article II, Sec. 8.
IV(l) & VI(l); US-Colombia Defense Cooperation Agreement,
Art. IV(6); US-Poland Status of Forces Agreement, Art. 4(1); 458
EDCA. Art. VII(I).
US-Australia Force Posture Agreement, Art. XIV(l).
459
National Power Corporation v. Province of Quezon, 610
US-Bulgaria Defense Cooperation Agreement, Art. IV(8);
441
Phil. 456 (2009).
US-Colombia Defense Cooperation Agreement, Art. IV(4);
US-Poland Status of Forces Agreement, Art. 3(10); US- 460
Australia Force Posture Agreement, Art. X(2). National Power Corporation v. Province of Quezon, supra.

461
442
2002 MLSA, Art. III(2); 2007 MLSA, Art. III(2). EDCA, Art. III(6); Art. IV(2); Art. V(1, 4); Art. VIII(2).

462
443
2002 MLSA, Art. IV(l)(a)(2); 2007 MLSA, Art. IV(l)(a)(2). Statement of Secretary Albert de/ Rosario before the
Permanent Court of Arbitration, Peace Palace, The Hague,
Netherlands, 7 July 2015, OFFICIAL GAZETTE, available at
444
2002 MLSA, Art. IV(l )(a)(3); 2007 MLSA, Art. IV(l )(a)(3).
<http://www.gov.ph/2015/07 /07 /statement-of-secretary-
albert-del-rosario-before-the-permanent-court-of-arbitration-
445
EDCA, Art. V(I). peace-palace-the-hague-netherlands/> (last visited 3
December 2015); Statement on Recent Incidents in the
446
EDCA, Art. V(2). Philippines' Baja de Masin/oc, 4 February 2015,
DEPARTMENT OF FOREIGN AFFAIRS, available at
447
EDCA, Art. III(1). <http://www.dfa.gov. ph/index. php/newsroom/ dfa-releases/ 5
3 3 7-statement-on-recent-incidents-in-the-ph ilippines-bajo-
448
EDCA, Art. IV(l ). de-masinloc> (last visited 21 October 2015).

463
449
2002 MLSA, Art. IV(l)(a)(2); 2007 MLSA, Art. IV(l)(a)(2). The Republic of the Philippines v. The People's Republic
of China, Case No. 2013-19 (Perm Ct. Arb.)
450
2002 MLSA, Art. IV(l)(a)(3); 2007 MLSA, Art. IV(l)(a)(3). <http://www.pcacases.com/web/view/7> (last visited 13
October 2015).
451
2002 MLSA, Art. IIl(l); 2007 MLSA, Art. III(l). 464
Comprehensive Agreement on the
Bangsamoro, OFFICIAL GAZETTE, available at
452
EDCA, Art. IV(l).

519
<http://www.gov.ph/2014/03/27/document-cab> (last visited
21 October 2015).

465
Frinston Lim, Authorities believe Abu Sayyaf behind
abduction of Filipina, 3 foreigners, 22 September 2015,
PHILIPPINE DAILY INQUIRER, available at
<http://globalnation.inquirer.net/l 28739/authorities-believe-
npa-behind-abduction-of-filipina-foreigners (last visited 3
December 2015).

466
Republic Act No. 10349 (2012); The Philippine
Navy, Picture of the Future: The Philippine Navy
Briefer, available at
<http://www.navy.mil.ph/downloads/THE%20PHILIPPINE%20
NA VY%20BRIEFER.pdf> (last visited 3 December 2015).

467
Joel Locsin, NDRRMC: Yolanda death toll hits 6,300 mark
nearly 6 months after typhoon, 17 April 2014, GMA NEWS
ONLINE
<http://www.gmanetwork.com/news/story/357322/news/nation
/ndrrmc-yolanda-death-toll-hits-6-300-mark-nearly-6-months-
after-typhoon> (last accessed 3 December 2015).

468
Typhoon Yolanda, OFFICIAL GAZETTE, available at
<http://www.gov.ph/crisis-response/updates-typhoon-
yolanda/> (last visited 3 December 2015).

520
 EN BANC
[G.R. NO. 159357. April 28, 2004]
Brother MARIANO MIKE Z. VELARDE, Petitioner, v. SOCIAL
JUSTICE SOCIETY, Respondent.
DECISION
PANGANIBAN, J.:
A decision that does not conform to the form and substance required
by the Constitution and the law is void and deemed legally inexistent.
To be valid, decisions should comply with the form, the procedure
and the substantive requirements laid out in the Constitution, the
Rules of Court and relevant circulars/orders of the Supreme Court.
For the guidance of the bench and the bar, the Court hereby
discusses these forms, procedures and requirements.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of
Court, assailing the June 12, 2003 Decision2 and July 29, 2003
Order3 of the Regional Trial Court (RTC) of Manila (Branch 49). 4 ςrνll
The challenged Decision was the offshoot of a Petition for
Declaratory Relief5filed before the RTC-Manila by herein Respondent
Social Justice Society (SJS) against herein Petitioner Mariano Mike
Z. Velarde, together with His Eminence, Jaime Cardinal Sin,
Executive Minister Erao Manalo, Brother Eddie Villanueva and
Brother Eliseo F. Soriano as co-respondents. The Petition prayed for
the resolution of the question whether or not the act of a religious
leader like any of herein respondents, in endorsing the candidacy of a
candidate for elective office or in urging or requiring the members of
his flock to vote for a specified candidate, is violative of the letter or
spirit of the constitutional provisions x x x.6 ςrνll
Alleging that the questioned Decision did not contain a statement of
facts and a dispositive portion, herein petitioner filed a Clarificatory
Motion and Motion for Reconsideration before the trial court. Soriano,
521
his co-respondent, similarly filed a separate Motion for
Reconsideration. In response, the trial court issued the assailed
Order, which held as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
x x x [T]his Court cannot reconsider, because what it was asked to
do, was only to clarify a Constitutional provision and to declare
whether acts are violative thereof. The Decision did not make a
dispositive portion because a dispositive portion is required only in
coercive reliefs, where a redress from wrong suffered and the benefit
that the prevailing party wronged should get. The step that these
movants have to take, is direct appeal under Rule 45 of the Rules of
Court, for a conclusive interpretation of the Constitutional provision to
the Supreme Court.7
The Antecedent Proceedings
On January 28, 2003, SJS filed a Petition for Declaratory Relief (SJS
Petition) before the RTC-Manila against Velarde and his aforesaid co-
respondents. SJS, a registered political party, sought the
interpretation of several constitutional provisions,8 specifically on the
separation of church and state; and a declaratory judgment on the
constitutionality of the acts of religious leaders endorsing a candidate
for an elective office, or urging or requiring the members of their flock
to vote for a specified candidate.
The subsequent proceedings were recounted in the challenged
Decision in these words:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
x x x. Bro. Eddie Villanueva submitted, within the original period [to
file an Answer], a Motion to Dismiss. Subsequently, Executive
Minister Erao Manalo and Bro. Mike Velarde, filed their Motions to
Dismiss. While His Eminence Jaime Cardinal L. Sin, filed a Comment
and Bro. Eli Soriano, filed an Answer within the extended period and
similarly prayed for the dismissal of the Petition. All sought the
dismissal of the Petition on the common grounds that it does not state
a cause of action and that there is no justiciable controversy. They
were ordered to submit a pleading by way of advisement, which was
closely followed by another Order denying all the Motions to Dismiss.
Bro. Mike Velarde, Bro. Eddie Villanueva and Executive Minister Erao
Manalo moved to reconsider the denial. His Eminence Jaime
Cardinal L. Sin, asked for extension to file memorandum. Only Bro.
Eli Soriano complied with the first Order by submitting his
Memorandum. x x x. chanroblesvirtuallawlibrary
x x x the Court denied the Motions to Dismiss, and the Motions for
Reconsideration filed by Bro. Mike Velarde, Bro. Eddie Villanueva
and Executive Minister Erao Manalo, which raised no new arguments
other than those already considered in the motions to dismiss x x
x.9 ςrνll
After narrating the above incidents, the trial court said that it had
jurisdiction over the Petition, because in praying for a determination
as to whether the actions imputed to the respondents are violative of
Article II, Section 6 of the Fundamental Law, [the Petition] has raised
only a question of law.10 It then proceeded to a lengthy discussion of
the issue raised in the Petition the separation of church and state
even tracing, to some extent, the historical background of the
principle. Through its discourse, the court a quo opined at some point
that the [e]ndorsement of specific candidates in an election to any
public office is a clear violation of the separation clause.11 ςrνll
After its essay on the legal issue, however, the trial court failed to
include a dispositive portion in its assailed Decision. Thus, Velarde
and Soriano filed separate Motions for Reconsideration which, as
mentioned earlier, were denied by the lower court.
Hence, this Petition for Review. 12
ςrνll
This Court, in a Resolution13 dated September 2, 2003, required SJS
and the Office of the Solicitor General (OSG) to submit their
respective comments. In the same Resolution, the Court gave the
other parties -- impleaded as respondents in the original case below -
-the opportunity to comment, if they so desired.
On April 13, 2004, the Court en banc conducted an Oral Argument.14
1.Whether or not the Decision dated 12 June 2003 rendered by the
court a quo was proper and valid;chanroblesvirtuallawlibrary
2.Whether or not there exists justiceable controversy in herein
respondents Petition for declaratory relief;chanroblesvirtuallawlibrary
3.Whether or not herein respondent has legal interest in filing the
Petition for declaratory relief;chanroblesvirtuallawlibrary
4.Whether or not the constitutional question sought to be resolved by
herein respondent is ripe for judicial
determination;chanroblesvirtuallawlibrary
5.Whether or not there is adequate remedy other than the declaratory
relief; and,
6.Whether or not the court a quo has jurisdiction over the Petition for
declaratory relief of herein respondent.15 ςrνll
During the Oral Argument, the issues were narrowed down and
classified as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
A.Procedural Issues
Did the Petition for Declaratory Relief raise a justiciable
controversy?Did it state a cause of action? Did respondent have any
legal standing to file the Petition for Declaratory
Relief?chanroblesvirtualawlibrary
B.Substantive Issues
1.Did the RTC Decision conform to the form and substance required
by the Constitution, the law and the Rules of
Court?chanroblesvirtualawlibrary

The Issues
In his Petition, Brother Mike Velarde submits the following issues for
this Courts resolution:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
2.May religious leaders like herein petitioner, Bro. Mike Velarde, be
prohibited from endorsing candidates for public office? Corollarily,
may they be banned from campaigning against said candidates?

522
 The Courts Ruling
The Petition of Brother Mike Velarde is meritorious.
Procedural Issues:
Requisites of Petitions
for Declaratory Relief
Section 1 of Rule 63 of the Rules of Court, which deals with petitions
for declaratory relief, provides in part:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Section 1. Who may file petition.- Any person interested under a
deed, will, contract or other written instrument, whose rights are
affected by a statute, executive order or regulation, ordinance, or any
other governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a
declaration of his rights or duties thereunder.
Based on the foregoing, an action for declaratory relief should be filed
by a person interested under a deed, a will, a contract or other written
instrument, and whose rights are affected by a statute, an executive
order, a regulation or an ordinance. The purpose of the remedy is to
interpret or to determine the validity of the written instrument and to
seek a judicial declaration of the parties rights or duties
thereunder.16 The essential requisites of the action are as follows: (1)
there is a justiciable controversy; (2) the controversy is between
persons whose interests are adverse; (3) the party seeking the relief
has a legal interest in the controversy; and (4) the issue is ripe for
judicial determination.17
Justiciable Controversy
Brother Mike Velarde contends that the SJS Petition failed to allege,
much less establish before the trial court, that there existed a
justiciable controversy or an adverse legal interest between them;
and that SJS had a legal right that was being violated or threatened
to be violated by petitioner. On the contrary, Velarde alleges that SJS
premised its action on mere speculations, contingent events, and
523
hypothetical issues that had not yet ripened into an actual
controversy. Thus, its Petition for Declaratory Relief must fail.
A justiciable controversy refers to an existing case or controversy that
is appropriate or ripe for judicial determination, not one that is
conjectural or merely anticipatory.18 The SJS Petition for Declaratory
Relief fell short of this test. It miserably failed to allege an existing
controversy or dispute between the petitioner and the named
respondents therein. Further, the Petition did not sufficiently state
what specific legal right of the petitioner was violated by the
respondents therein; and what particular act or acts of the latter were
in breach of its rights, the law or the Constitution.
As pointed out by Brother Eliseo F. Soriano in his Comment,19 what
exactly has he done that merited the attention of SJS? He confesses
that he does not know the answer, because the SJS Petition (as well
as the assailed Decision of the RTC) yields nothing in this respect.
His Eminence, Jaime Cardinal Sin, adds that, at the time SJS filed its
Petition on January 28, 2003, the election season had not even
started yet; and that, in any event, he has not been actively involved
in partisan politics.
An initiatory complaint or petition filed with the trial court should
contain a plain, concise and direct statement of the ultimate facts on
which the party pleading relies for his claim x x x.20 Yet, the SJS
Petition stated no ultimate facts.
Indeed, SJS merely speculated or anticipated without factual
moorings that, as religious leaders, the petitioner and his co-
respondents below had endorsed or threatened to endorse a
candidate or candidates for elective offices; and that such actual or
threatened endorsement will enable [them] to elect men to public
office who [would] in turn be forever beholden to their leaders,
enabling them to control the government[;]21 and pos[ing] a clear and
present danger of serious erosion of the peoples faith in the electoral
process[;] and reinforc[ing] their belief that religious leaders
determine the ultimate result of elections,22 which would then be
violative of the separation clause.
Such premise is highly speculative and merely theoretical, to say the
least. Clearly, it does not suffice to constitute a justiciable
controversy. The Petition does not even allege any indication or
manifest intent on the part of any of the respondents below to
champion an electoral candidate, or to urge their so-called flock to
vote for, or not to vote for, a particular candidate. It is a time-honored
rule that sheer speculation does not give rise to an actionable right.
Obviously, there is no factual allegation that SJS rights are being
subjected to any threatened, imminent and inevitable violation that
should be prevented by the declaratory relief sought.The judicial
power and duty of the courts to settle actual controversies involving
rights that are legally demandable and enforceable23 cannot be
exercised when there is no actual or threatened violation of a legal
right.
All that the 5-page SJS Petition prayed for was that the question
raised in paragraph 9 hereof be resolved.24 In other words, it merely
sought an opinion of the trial court on whether the speculated acts of
religious leaders endorsing elective candidates for political offices
violated the constitutional principle on the separation of church and
state. SJS did not ask for a declaration of its rights and duties; neither
did it pray for the stoppage of any threatened violation of its declared
rights.Courts, however, are proscribed from rendering an advisory
opinion.25
Cause of Action
Respondent SJS asserts that in order to maintain a petition for
declaratory relief, a cause of action need not be alleged or proven.
Supposedly, for such petition to prosper, there need not be any
violation of a right, breach of duty or actual wrong committed by one
party against the other.
Petitioner, on the other hand, argues that the subject matter of an
action for declaratory relief should be a deed, a will, a contract (or
other written instrument), a statute, an executive order, a regulation
or an ordinance. But the subject matter of the SJS Petition is the
constitutionality of an act of a religious leader to endorse the
candidacy of a candidate for elective office or to urge or require the
524
members of the flock to vote for a specified candidate.26 According to
petitioner, this subject matter is beyond the realm of an action for
declaratory relief.27 Petitioner avers that in the absence of a valid
subject matter, the Petition fails to state a cause of action and, hence,
should have been dismissed outright by the court a quo.
A cause of action is an act or an omission of one party in violation of
the legal right or rights of another, causing injury to the latter.28 Its
essential elements are the following: (1) a right in favor of the plaintiff;
(2) an obligation on the part of the named defendant to respect or not
to violate such right; and (3) such defendants act or omission that is
violative of the right of the plaintiff or constituting a breach of the
obligation of the former to the latter.29 ςrνll
The failure of a complaint to state a cause of action is a ground for its
outright dismissal.30 However, in special civil actions for declaratory
relief, the concept of a cause of action under ordinary civil actions
does not strictly apply. The reason for this exception is that an action
for declaratory relief presupposes that there has been no actual
breach of the instruments involved or of rights arising
thereunder.31 Nevertheless, a breach or violation should be
impending, imminent or at least threatened.
A perusal of the Petition filed by SJS before the RTC discloses no
explicit allegation that the former had any legal right in its favor that it
sought to protect. We can only infer the interest, supposedly in its
favor, from its bare allegation that it has thousands of members who
are citizens-taxpayers-registered voters and who are keenly
interested in a judicial clarification of the constitutionality of the
partisan participation of religious leaders in Philippine politics and in
the process to insure adherence to the Constitution by everyone x x
x.32 ςrνll
Such general averment does not, however, suffice to constitute a
legal right or interest. Not only is the presumed interest not personal
in character; it is likewise too vague, highly speculative and
uncertain.33 The Rules require that the interest must be material to
the issue and affected by the questioned act or instrument, as
distinguished from simple curiosity or incidental interest in the
question raised.34 ςrνll
To bolster its stance, SJS cites the Corpus Juris Secundum and
submits that the [p]laintiff in a declaratory judgment action does not
seek to enforce a claim against [the] defendant, but seeks a judicial
declaration of [the] rights of the parties for the purpose of guiding
[their] future conduct, and the essential distinction between a
declaratory judgment action and the usual action is that no actual
wrong need have been committed or loss have occurred in order to
sustain the declaratory judgment action, although there must be no
uncertainty that the loss will occur or that the asserted rights will be
invaded.35 ςrνll
SJS has, however, ignored the crucial point of its own reference that
there must be no uncertainty that the loss will occur or that the
asserted rights will be invaded. Precisely, as discussed earlier, it
merely conjectures that herein petitioner (and his co-respondents
below) might actively participate in partisan politics, use the awesome
voting strength of its faithful flock [to] enable it to elect men to public
office x x x, enabling [it] to control the government.36 ςrνll
During the Oral Argument, though, Petitioner Velarde and his co-
respondents below all strongly asserted that they had not in any way
engaged or intended to participate in partisan politics.They all firmly
assured this Court that they had not done anything to trigger the
issue raised and to entitle SJS to the relief sought.
Indeed, the Court finds in the Petition for Declaratory Relief no single
allegation of fact upon which SJS could base a right of relief from the
named respondents. In any event, even granting that it sufficiently
asserted a legal right it sought to protect, there was nevertheless no
certainty that such right would be invaded by the said respondents.
Not even the alleged proximity of the elections to the time the Petition
was filed below (January 28, 2003) would have provided the certainty
that it had a legal right that would be jeopardized or violated by any of
those Respondents.
Legal Standing
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 challenged
525
act.37 Interest means a material interest in issue that is affected by
the questioned act or instrument, as distinguished from a mere
incidental interest in the question involved.38 ςrνll
Petitioner alleges that [i]n seeking declaratory relief as to the
constitutionality of an act of a religious leader to endorse, or require
the members of the religious flock to vote for a specific candidate,
herein Respondent SJS has no legal interest in the controversy;39 it
has failed to establish how the resolution of the proffered question
would benefit or injure it.
Parties bringing suits challenging the constitutionality of a law, an act
or a statute must show not only that the law [or act] is invalid, but also
that [they have] sustained or [are] in immediate or imminent danger of
sustaining some direct injury as a result of its enforcement, and not
merely that [they] suffer thereby in some indefinite way.40 They must
demonstrate 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.41 ςrνll
First, parties suing as taxpayers must specifically prove that they
have sufficient interest in preventing the illegal expenditure of money
raised by taxation.42 A taxpayers action may be properly brought only
when there is an exercise by Congress of its taxing or spending
power.43 In the present case, there is no allegation, whether express
or implied, that taxpayers money is being illegally disbursed.
Second, there was no showing in the Petition for Declaratory Relief
that SJS as a political party or its members as registered voters
would be adversely affected by the alleged acts of the respondents
below, if the question at issue was not resolved. There was no
allegation that SJS had suffered or would be deprived of votes due to
the acts imputed to the said respondents. Neither did it allege that
any of its members would be denied the right of suffrage or the
privilege to be voted for a public office they are seeking.
Finally, the allegedly keen interest of its thousands of members who
are citizens-taxpayers-registered voters is too general44 and beyond
the contemplation of the standards set by our jurisprudence. Not only
is the presumed interest impersonal in character; it is likewise too
vague, highly speculative and uncertain to satisfy the requirement of
standing.45
Transcendental Importance
In any event, SJS urges the Court to take cognizance of the Petition,
even sans legal standing, considering that the issues raised are of
paramount public interest.
In not a few cases, the Court has liberalized the locus
standi requirement when a petition raises an issue of transcendental
significance or paramount importance to the people.46 Recently, after
holding that the IBP had no locus standi to bring the suit, the Court
in IBP v. Zamora47 nevertheless entertained the Petition therein. It
noted that the IBP has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness, novelty and
weight as precedents.48 ςrνll
Similarly in the instant case, the Court deemed the constitutional
issue raised in the SJS Petition to be of paramount interest to the
Filipino people. The issue did not simply concern a delineation of the
separation between church and state, but ran smack into the
governance of our country. The issue was both transcendental in
importance and novel in nature, since it had never been decided
before.
The Court, thus, called for Oral Argument to determine with certainty
whether it could resolve the constitutional issue despite the barren
allegations in the SJS Petition as well as the abbreviated proceedings
in the court below. Much to its chagrin, however, counsels for the
parties -- particularly for Respondent SJS -- made no satisfactory
allegations or clarifications that would supply the deficiencies
hereinabove discussed. Hence, even if the Court would exempt this
case from the stringent locus standi requirement, such heroic effort
would be futile because the transcendental issue cannot be resolved
anyway.
Proper Proceedings Before
the Trial Court
526
To prevent a repetition of this waste of precious judicial time and
effort, and for the guidance of the bench and the bar, the Court
reiterates the elementary procedure49 that must be followed by trial
courts in the conduct of civil cases.50 ςrνll
Prefatorily, the trial court may -- motu proprio or upon motion of the
defendant -- dismiss a complaint51 (or petition, in a special civil
action) that does not allege the plaintiffs (or petitioners) cause or
causes of action.52 A complaint or petition should contain a plain,
concise and direct statement of the ultimate facts on which the party
pleading relies for his claim or defense.53 It should likewise clearly
specify the relief sought.54 ςrνll
Upon the filing of the complaint/petition and the payment of the
requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants or the respondents, with a
directive that the defendant answer55 within 15 days, unless a
different period is fixed by the court.56 The summons shall also
contain a notice that if such answer is not filed, the
plaintiffs/petitioners shall take a judgment by default and may be
granted the relief applied for.57 The court, however, may -- upon such
terms as may be just -- allow an answer to be filed after the time fixed
by the Rules.58 ςrνll
If the answer sets forth a counterclaim or cross-claim, it must be
answered within ten (10) days from service.59 A reply may be filed
within ten (10) days from service of the pleading responded to.60 ςrνll
When an answer fails to tender an issue or admits the material
allegations of the adverse partys pleading, the court may, on motion
of that party, direct judgment on such pleading (except in actions for
declaration of nullity or annulment of marriage or for legal
separation). 61 Meanwhile, a party seeking to recover upon a claim, a
counterclaim or crossclaim -- or to obtain a declaratory relief -- may,
at any time after the answer thereto has been served, move for a
summary judgment in its favor.62 Similarly, a party against whom a
claim, a counterclaim or crossclaim is asserted -- or a declaratory
relief sought -- may, at any time, move for a summary judgment in its
favor.63 After the motion is heard, the judgment sought shall be
rendered forthwith if there is a showing that, except as to the amount
of damages, there is no genuine issue as to any material fact; and
that the moving party is entitled to a judgment as a matter of
law.64 ςrνll
Within the time for -- but before -- filing the answer to the complaint or
petition, the defendant may file a motion to dismiss based on any of
the grounds stated in Section 1 of Rule 16 of the Rules of Court.
During the hearing of the motion, the parties shall submit their
arguments on the questions of law, and their evidence on the
questions of fact.65 After the hearing, the court may dismiss the action
or claim, deny the motion, or order the amendment of the pleadings.
It shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable. In every case, the resolution
shall state clearly and distinctly the reasons therefor.66 ςrνll
If the motion is denied, the movant may file an answer within the
balance of the period originally prescribed to file an answer, but not
less than five (5) days in any event, computed from the receipt of the
notice of the denial. If the pleading is ordered to be amended, the
defendant shall file an answer within fifteen (15) days, counted from
the service of the amended pleading, unless the court provides a
longer period.67 ςrνll
After the last pleading has been served and filed, the case shall be
set for pretrial,68 which is a mandatory proceeding.69 A plaintiffs/
petitioners (or its duly authorized representatives) non-appearance at
the pretrial, if without valid cause, shall result in the dismissal of the
action with prejudice, unless the court orders otherwise. A similar
failure on the part of the defendant shall be a cause for allowing the
plaintiff/petitioner to present evidence ex parte, and the court to
render judgment on the basis thereof.70 ςrνll
The parties are required to file their pretrial briefs; failure to do so
shall have the same effect as failure to appear at the pretrial.71 Upon
the termination thereof, the court shall issue an order reciting in detail
the matters taken up at the conference; the action taken on them, the
amendments allowed to the pleadings; and the agreements or
admissions, if any, made by the parties regarding any of the matters
considered.72 The parties may further avail themselves of any of the
modes of discovery,73 if they so wish.
527
Thereafter, the case shall be set for trial,74 in which the parties shall
adduce their respective evidence in support of their claims and/or
defenses. By their written consent or upon the application of either
party, or on its own motion, the court may also order any or all of the
issues to be referred to a commissioner, who is to be appointed by it
or to be agreed upon by the parties.75 The trial or hearing before the
commissioner shall proceed in all respects as it would if held before
the court.76 ςrνll
Upon the completion of such proceedings, the commissioner shall file
with the court a written report on the matters referred by the
parties.77 The report shall be set for hearing, after which the court
shall issue an order adopting, modifying or rejecting it in whole or in
part; or recommitting it with instructions; or requiring the parties to
present further evidence before the commissioner or the court.78 ςrνll
Finally, a judgment or final order determining the merits of the case
shall be rendered. The decision 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 the issuing magistrate,
and filed with the clerk of court.79 ςrνll
Based on these elementary guidelines, let us examine the
proceedings before the trial court in the instant case.
First, with respect to the initiatory pleading of the SJS. Even a cursory
perusal of the Petition immediately reveals its gross inadequacy. It
contained no statement of ultimate facts upon which the petitioner
relied for its claim. Furthermore, it did not specify the relief it sought
from the court, but merely asked it to answer a hypothetical question.
Relief, as contemplated in a legal action, refers to a specific coercive
measure prayed for as a result of a violation of the rights of a plaintiff
or a petitioner.80As already discussed earlier, the Petition before the
trial court had no allegations of fact81 or of any specific violation of the
petitioners rights, which the respondents had a duty to respect. Such
deficiency amounted to a failure to state a cause of action; hence, no
coercive relief could be sought and adjudicated. The Petition
evidently lacked substantive requirements and, we repeat, should
have been dismissed at the outset.
Second, with respect to the trial court proceedings. Within the period
set to file their respective answers to the SJS Petition, Velarde,
Villanueva and Manalo filed Motions to Dismiss; Cardinal Sin, a
Comment; and Soriano, within a priorly granted extended period, an
Answer in which he likewise prayed for the dismissal of the
Petition.82 SJS filed a Rejoinder to the Motion of Velarde, who
subsequently filed a Sur-Rejoinder. Supposedly, there were several
scheduled settings, in which the [c]ourt was apprised of the
respective positions of the parties.83 The nature of such settings --
whether pretrial or trial hearings -- was not disclosed in the records.
Before ruling on the Motions to Dismiss, the trial court issued an
Order84 dated May 8, 2003, directing the parties to submit their
memoranda. Issued shortly thereafter was another Order85 dated May
14, 2003, denying all the Motions to Dismiss.
In the latter Order, the trial court perfunctorily
ruled:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The Court now resolves to deny the Motions to Dismiss, and after all
the memoranda are submitted, then, the case shall be deemed as
submitted for resolution.86 ςrνll
Apparently, contrary to the requirement of Section 2 of Rule 16 of the
Rules of Court, the Motions were not heard.Worse, the Order
purportedly resolving the Motions to Dismiss did not state any reason
at all for their denial, in contravention of Section 3 of the said Rule 16.
There was not even any statement of the grounds relied upon by the
Motions; much less, of the legal findings and conclusions of the trial
court.
Thus, Velarde, Villanueva and Manalo moved for reconsideration.
Pending the resolution of these Motions for Reconsideration,
Villanueva filed a Motion to suspend the filing of the parties
memoranda. But instead of separately resolving the pending Motions
fairly and squarely, the trial court again transgressed the Rules of
Court when it immediately proceeded to issue its Decision, even
before tackling the issues raised in those Motions.
Furthermore, the RTC issued its Decision without allowing the parties
to file their answers. For this reason, there was no joinder of the
528
issues. If only it had allowed the filing of those answers, the trial court
would have known, as the Oral Argument revealed, that the petitioner
and his co-respondents below had not committed or threatened to
commit the act attributed to them (endorsing candidates) -- the act
that was supposedly the factual basis of the suit.
Parenthetically, the court a quo further failed to give a notice of the
Petition to the OSG, which was entitled to be heard upon questions
involving the constitutionality or validity of statutes and other
measures.87 ςrνll
Moreover, as will be discussed in more detail, the questioned
Decision of the trial court was utterly wanting in the requirements
prescribed by the Constitution and the Rules of Court.
All in all, during the loosely abbreviated proceedings of the case, the
trial court indeed acted with inexplicable haste, with total ignorance of
the law -- or, worse, in cavalier disregard of the rules of procedure --
and with grave abuse of discretion.
Contrary to the contentions of the trial judge and of SJS, proceedings
for declaratory relief must still follow the process described above --
the petition must state a cause of action; the proceedings must
undergo the procedure outlined in the Rules of Court; and the
decision must adhere to constitutional and legal requirements.
First Substantive Issue:
Fundamental Requirements
of a Decision
The Constitution commands that [n]o 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 basis therefor.88 ςrνll
Consistent with this constitutional mandate, Section 1 of Rule 36 of
the Rules on Civil Procedure similarly
provides:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 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 court.
In the same vein, Section 2 of Rule 120 of the Rules of Court on
Criminal Procedure reads as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 2. Form and contents of judgments. -- The judgment must be
written in the official language, personally and directly prepared by
the judge and signed by him and shall contain clearly and distinctly a
statement of the facts proved or admitted by the accused and the law
upon which the judgment is based.
x x x.
Pursuant to the Constitution, this Court also issued on January 28,
1988, Administrative Circular No. 1, prompting all judges to make
complete findings of facts in their decisions, and scrutinize closely the
legal aspects of the case in the light of the evidence presented.They
should avoid the tendency to generalize and form conclusions without
detailing the facts from which such conclusions are deduced.
In many cases,89 this Court has time and time again reminded
magistrates to heed the demand of Section 14, Article VIII of the
Constitution. The Court, through Chief Justice Hilario G. Davide Jr.
in Yao v. Court of Appeals,90discussed at length the implications of
this provision and strongly exhorted
thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Faithful adherence to the requirements of Section 14, Article VIII of
the Constitution is indisputably a paramount component of due
process and fair play. It is likewise demanded by the due process
clause of the Constitution. The parties to a litigation should 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
529
appeal to the 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 precisely
prejudicial to the losing party, who is unable to pinpoint the possible
errors of the court for review by a higher tribunal. More than that, the
requirement is an assurance to the parties that, in reaching judgment,
the judge did so through the processes of legal reasoning. It is, thus,
a safeguard against the impetuosity of the judge, preventing him from
deciding ipse dixit. Vouchsafed neither the sword nor the purse by the
Constitution but nonetheless vested with the sovereign prerogative of
passing judgment on the life, liberty or property of his fellowmen, the
judge must ultimately depend on the power of reason for sustained
public confidence in the justness of his decision.
In People v. Bugarin,91 the Court also
explained:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The requirement that the decisions of courts must be in writing and
that they must set forth clearly and distinctly the facts and the law on
which they are based serves many functions. It is intended, among
other things, to inform the parties of the reason or reasons for the
decision so that if any of them appeals, he can point out to the
appellate court the finding of facts or the rulings on points of law with
which he disagrees. More than that, the requirement is an assurance
to the parties that, in reaching judgment, the judge did so through the
processes of legal reasoning. x x x. chanroblesvirtuallawlibrary
Indeed, elementary due process demands that the parties to a
litigation be given information on how the case was decided, as well
as an explanation of the factual and legal reasons that led to the
conclusions of the court.92 ςrνll
In Madrid v. Court of Appeals,93 this Court had instructed magistrates
to exert effort to ensure that their decisions would present a
comprehensive analysis or account of the factual and legal findings
that would substantially address the issues raised by the parties.
In the present case, it is starkly obvious that the assailed Decision
contains no statement of facts -- much less an assessment or
analysis thereof -- or of the courts findings as to the probable facts.
The assailed Decision begins with a statement of the nature of the
action and the question or issue presented. Then follows a brief
explanation of the constitutional provisions involved, and what the
Petition sought to achieve. Thereafter, the ensuing procedural
incidents before the trial court are tracked. The Decision proceeds to
a full-length opinion on the nature and the extent of the separation of
church and state. Without expressly stating the final conclusion she
has reached or specifying the relief granted or denied, the trial judge
ends her Decision with the clause SO ORDERED.
What were the antecedents that necessitated the filing of the
Petition? What exactly were the distinct facts that gave rise to the
question sought to be resolved by SJS? More important, what were
the factual findings and analysis on which the trial court based its
legal findings and conclusions? None were stated or implied. Indeed,
the RTCs Decision cannot be upheld for its failure to express clearly
and distinctly the facts on which it was based. Thus, the trial court
clearly transgressed the constitutional directive.
The significance of factual findings lies in the value of the decision as
a precedent. How can it be so if one cannot apply the ruling to similar
circumstances, simply because such circumstances are unknown?
Otherwise stated, how will the ruling be applied in the future, if there
is no point of factual comparison?chanroblesvirtualawlibrary
Moreover, the court a quo did not include a resolutory or dispositive
portion in its so-called Decision. The importance of such portion was
explained in the early case Manalang v. Tuason de Rickards,94 from
which we quote:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The resolution of the Court on a given issue as embodied in the
dispositive part of the decision or order is the investitive or controlling
factor that determines and settles the rights of the parties and the
questions presented therein, notwithstanding the existence of
statements or declaration in the body of said order that may be
confusing.
The assailed Decision in the present case leaves us in the dark as to
its final resolution of the Petition. To recall, the original Petition was
530
for declaratory relief. So, what relief did the trial court grant or deny?
What rights of the parties did it conclusively declare? Its final
statement says, SO ORDERED. But what exactly did the court order?
It had the temerity to label its issuance a Decision, when nothing was
in fact decided.
Respondent SJS insists that the dispositive portion can be found in
the body of the assailed Decision. It claims that the issue is disposed
of and the Petition finally resolved by the statement of the trial court
found on page 10 of its 14-page Decision, which reads: Endorsement
of specific candidates in an election to any public office is a clear
violation of the separation clause.95 ςrνll
We cannot agree.
In Magdalena Estate, Inc. v. Caluag,96 the obligation of the party
imposed by the Court was allegedly contained in the text of the
original Decision. The Court, however,
held:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
x x x The quoted finding of the lower court cannot supply deficiencies
in the dispositive portion. It is a mere opinion of the court and the rule
is settled that where there is a conflict between the dispositive
part and the opinion, the former must prevail over the latter on the
theory that the dispositive portion is the final order while the opinion is
merely a statement ordering nothing. (Italics in the original)
Thus, the dispositive portion cannot be deemed to be the statement
quoted by SJS and embedded in the last paragraph of page 10 of the
assailed 14-page Decision. If at all, that statement is merely an
answer to a hypothetical legal question and just a part of the opinion
of the trial court. It does not conclusively declare the rights (or
obligations) of the parties to the Petition. Neither does it grant any --
much less, the proper -- relief under the circumstances, as required of
a dispositive portion.
Failure to comply with the constitutional injunction is a grave abuse of
discretion amounting to lack or excess of jurisdiction. Decisions or
orders issued in careless disregard of the constitutional mandate are
a patent nullity and must be struck down as void.97
 Parts of a Decision
In general, the essential parts of a good decision consist of the
following: (1) statement of the case; (2) statement of facts; (3) issues
or assignment of errors; (4) court ruling, in which each issue is, as a
rule, separately considered and resolved; and, finally, (5) dispositive
portion. The ponentemay also opt to include an introduction or a
prologue as well as an epilogue, especially in cases in which
controversial or novel issues are involved.98 ςrνll
An introduction may consist of a concise but comprehensive
statement of the principal factual or legal issue/s of the case. In some
cases -- particularly those concerning public interest; or involving
complicated commercial, scientific, technical or otherwise rare subject
matters -- a longer introduction or prologue may serve to acquaint
readers with the specific nature of the controversy and the issues
involved. An epilogue may be a summation of the important principles
applied to the resolution of the issues of paramount public interest or
significance. It may also lay down an enduring philosophy of law or
guiding principle.
Let us now, again for the guidance of the bench and the bar, discuss
the essential parts of a good decision.
1.Statement of the Case
The Statement of the Case consists of a legal definition of the nature
of the action.At the first instance, this part states whether the action is
a civil case for collection, ejectment, quieting of title, foreclosure of
mortgage, and so on; or, if it is a criminal case, this part describes the
specific charge -- quoted usually from the accusatory portion of the
information -- and the plea of the accused. Also mentioned here are
whether the case is being decided on appeal or on a petition
for certiorari , the court of origin, the case number in the trial court,
and the dispositive portion of the assailed decision.
In a criminal case, the verbatim reproduction of the criminal
information serves as a guide in determining the nature and the
gravity of the offense for which the accused may be found
531
culpable.As a rule, the accused cannot be convicted of a crime
different from or graver than that charged.
Also, quoting verbatim the text of the information is especially
important when there is a question on the sufficiency of the charge, or
on whether qualifying and modifying circumstances have been
adequately alleged therein.
To ensure that due process is accorded, it is important to give a short
description of the proceedings regarding the plea of the accused.
Absence of an arraignment, or a serious irregularity therein, may
render the judgment void, and further consideration by the appellate
court would be futile. In some instances, especially in appealed
cases, it would also be useful to mention the fact of the appellants
detention, in order to dispose of the preliminary query -- whether or
not they have abandoned their appeal by absconding or jumping bail.
Mentioning the court of origin and the case number originally
assigned helps in facilitating the consolidation of the records of the
case in both the trial and the appellate courts, after entry of final
judgment.
Finally, the reproduction of the decretal portion of the assailed
decision informs the reader of how the appealed case was decided
by the court a quo.
2.Statement of Facts
There are different ways of relating the facts of the case. First, under
the objective or reportorial method, the judge summarizes -- without
comment -- the testimony of each witness and the contents of each
exhibit. Second, under the synthesis method, the factual theory of the
plaintiff or prosecution and then that of the defendant or defense is
summarized according to the judges best light. Third, in the
subjective method, the version of the facts accepted by the judge is
simply narrated without explaining what the parties versions
are. Finally, through a combination of objective and subjective
means, the testimony of each witness is reported and the judge then
formulates his or her own version of the facts.
In criminal cases, it is better to present both the version of the
prosecution and that of the defense, in the interest of fairness and
due process. A detailed evaluation of the contentions of the parties
must follow. The resolution of most criminal cases, unlike civil and
other cases, depends to a large extent on the factual issues and the
appreciation of the evidence. The plausibility or the implausibility of
each version can sometimes be initially drawn from a reading of the
facts. Thereafter, the bases of the court in arriving at its findings and
conclusions should be explained.
On appeal, the fact that the assailed decision of the lower court fully,
intelligently and correctly resolved all factual and legal issues
involved may partly explain why the reviewing court finds no reason
to reverse the findings and conclusions of the former. Conversely, the
lower courts patent misappreciation of the facts or misapplication of
the law would aid in a better understanding of why its ruling is
reversed or modified.
In appealed civil cases, the opposing sets of facts no longer need to
be presented. Issues for resolution usually involve questions of law,
grave abuse of discretion, or want of jurisdiction; hence, the facts of
the case are often undisputed by the parties. With few exceptions,
factual issues are not entertained in non-criminal
cases.Consequently, the narration of facts by the lower court, if
exhaustive and clear, may be reproduced; otherwise, the material
factual antecedents should be restated in the words of the reviewing
magistrate.
In addition, the reasoning of the lower court or body whose decision
is under review should be laid out, in order that the parties may
clearly understand why the lower court ruled in a certain way, and
why the reviewing court either finds no reason to reverse it or
concludes otherwise.
3.Issues or Assignment of Errors
Both factual and legal issues should be stated. On appeal, the
assignment of errors, as mentioned in the appellants brief, may be
reproduced in toto and tackled seriatim,so as to avoid motions for
reconsideration of the final decision on the ground that the court
532
failed to consider all assigned errors that could affect the outcome of
the case. But when the appellant presents repetitive issues or when
the assigned errors do not strike at the main issue, these may be
restated in clearer and more coherent terms.
Though not specifically questioned by the parties, additional issues
may also be included, if deemed important for substantial justice to
be rendered. Note that appealed criminal cases are given de
novo review, in contrast to noncriminal cases in which the reviewing
court is generally limited to issues specifically raised in the appeal.
The few exceptions are errors of jurisdiction; questions not raised but
necessary in arriving at a just decision on the case; or unassigned
errors that are closely related to those properly assigned, or upon
which depends the determination of the question properly raised.
4.The Courts Ruling
This part contains a full discussion of the specific errors or issues
raised in the complaint, petition or appeal, as the case may be; as
well as of other issues the court deems essential to a just disposition
of the case. Where there are several issues, each one of them should
be separately addressed, as much as practicable. The respective
contentions of the parties should also be mentioned here. When
procedural questions are raised in addition to substantive ones, it is
better to resolve the former preliminarily.
5.The Disposition or Dispositive Portion
In a criminal case, the disposition should include a finding of
innocence or guilt, the specific crime committed, the penalty imposed,
the participation of the accused, the modifying circumstances if any,
and the civil liability and costs. In case an acquittal is decreed, the
court must order the immediate release of the accused, if detained,
(unless they are being held for another cause) and order the director
of the Bureau of Corrections (or wherever the accused is detained) to
report, within a maximum of ten (10) days from notice, the exact date
when the accused were set free.
In a civil case as well as in a special civil action, the disposition
should state whether the complaint or petition is granted or denied,
the specific relief granted, and the costs.The following test of
completeness may be applied.First, the parties should know their
rights and obligations. Second, they should know how to execute the
decision under alternative contingencies.Third, there should be no
need for further proceedings to dispose of the issues. Fourth, the
case should be terminated by according the proper relief. The proper
relief usually depends upon what the parties seek in their pleadings. It
may declare their rights and duties, command the performance of
positive prestations, or order them to abstain from specific acts. The
disposition must also adjudicate costs.
The foregoing parts need not always be discussed in sequence. But
they should all be present and plainly identifiable in the
decision.Depending on the writers character, genre and style, the
language should be fresh and free-flowing, not necessarily
stereotyped or in a fixed form; much less highfalutin, hackneyed and
pretentious. At all times, however, the decision must be clear,
concise, complete and correct.
Second Substantive Issue:
Religious Leaders Endorsement
of Candidates for Public Office
The basic question posed in the SJS Petition -- WHETHER
ENDORSEMENTS OF CANDIDACIES BY RELIGIOUS LEADERS IS
UNCONSTITUTIONAL -- undoubtedly deserves serious
consideration. As stated earlier, the Court deems this constitutional
issue to be of paramount interest to the Filipino citizenry, for it
concerns the governance of our country and its people. Thus, despite
the obvious procedural transgressions by both SJS and the trial court,
this Court still called for Oral Argument, so as not to leave any doubt
that there might be room to entertain and dispose of the SJS Petition
on the merits.
Counsel for SJS has utterly failed, however, to convince the Court
that there are enough factual and legal bases to resolve the
paramount issue. On the other hand, the Office of the Solicitor
General has sided with petitioner insofar as there are no facts
supporting the SJS Petition and the assailed Decision.
533
We reiterate that the said Petition failed to state directly the ultimate
facts that it relied upon for its claim. During the Oral Argument,
counsel for SJS candidly admitted that there were no factual
allegations in its Petition for Declaratory Relief.Neither were there
factual findings in the assailed Decision. At best, SJS merely asked
the trial court to answer a hypothetical question. In effect, it merely
sought an advisory opinion, the rendition of which was beyond the
courts constitutional mandate and jurisdiction.99 ςrνll
Indeed, the assailed Decision was rendered in clear violation of the
Constitution, because it made no findings of facts and final
disposition. Hence, it is void and deemed legally inexistent.
Consequently, there is nothing for this Court to review, affirm, reverse
or even just modify.
Regrettably, it is not legally possible for the Court to take up, on the
merits, the paramount question involving a constitutional principle. It
is a time-honored rule that the constitutionality of a statute [or act] will
be passed upon only if, and to the extent that, it is directly and
necessarily involved in a justiciable controversy and is essential to
the protection of the rights of the parties concerned.100 ςrνll
WHEREFORE, the Petition for Review of Brother Mike Velarde
is GRANTED.Theassailed June 12, 2003 Decision and July 29, 2003
Order of the Regional Trial Court of Manila (Branch 49) are
hereby DECLARED NULL AND VOID and thus SET ASIDE.The SJS
Petition for Declaratory Relief is DISMISSED for failure to state a
cause of action.
Let a copy of this Decision be furnished the Office of the Court
Administrator to evaluate and recommend whether the trial judge
may, after observing due process, be held administratively liable for
rendering a decision violative of the Constitution, the Rules of Court
and relevant circulars of this Court. No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and
TINGA, JJ.,concur.
Vitug, J., in the result. Atty. Samson S. Alcantara. The Office of the Solicitor Generals
Memorandum was signed by Assistant Solicitors General Antonio L.
Ynares-Santiago, J., no part. Villamor and Ma. Antonia Edita C. Dizon, Solicitor Rico Sebastian D.
Liwanag and Associate Solicitor Bernardino P. Salvador Jr.The
Corona, J., on leave. Memorandum of Bro. Eddie Villanueva was signed by Atty. Eric Paul
I. Fetalino; while that of Cardinal Sin, by Atty. Maria Liza A. Lopez-
Rosario. Iglesia ni Cristos counsel, Atty. Abraham G. Espejo, filed a
Endnotes:
Manifestation adopting INCs Petition, which had been filed with the
Court of Appeals, as Memorandum.
13
Rollo, p. 126.
14
Atty. Joselito Guianan Chan argued for Petitioner Velarde; Atty.
1
Samson Alcantara, for Respondent SJS; Atty. Eric Paul Fetalino, for
Rollo, pp. 3-37. Bro. Eddie Villanueva; Atty. Maria Liza Lopez-Rosario, for His
2
Id., pp. 39-52. Eminence Jaime Cardinal Sin; Atty. Abraham Espejo, for Executive
3
Id., p. 54. Minister Erao Manalo; and Solicitor Rico Sebastian D. Liwanag, for
4
Presided by Judge Concepcion S. Alarcon-Vergara. the OSG. Bro. Eliseo F. Soriano, through Counsel Rene
5
Rollo, pp. 270-276. Docketed as Civil Case No. 03-105642 in the A.V.Saguisag, filed a Manifestation dated April 10, 2004, which the
RTC. Court accepted in lieu of oral argument.
6
Assailed Decision, p. 1; rollo, p. 39. Original in upper case. 15
Petition, pp. 9-10; rollo, pp. 11-12. Original in upper case.
7
Rollo, p. 54. 16
Gozun v. Liangco, 339 SCRA 253, August 30, 2000; Vda. De
8
In particular, the following provisions of the Constitution were Aviles v. Court of Appeals, 264 SCRA 473, November 21, 1996.
mentioned in the SJS Petition:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ 17
Board of Optometry v. Colet, 260 SCRA 88, July 30, 1996; Gozun
v. Liangco, supra; citing Galarosa v. Valencia, 227 SCRA 728, 737,
The separation of church and state shall be inviolable. (6 of Article II) November 11, 1993; Office of the Ombudsman v. Judge Ibay, 364
SCRA 281, September 3, 2001.
18
The state shall promote social justice in all phases of national Board of Optometry v. Colet, supra.
19
development. (10, Article II) Rollo, pp. 163-175.
20
1 of Rule 8 of the Rules of Court.
21
No law shall be made respecting an establishment of religion, or Petition for Declaratory Relief, p. 4; rollo, p. 273.
22
prohibiting the free exercise thereof. The free exercise and enjoyment Ibid.
23
of religious profession and worship, without discrimination or 1 of Art. VIII of the Constitution.
24
preference, shall forever be allowed. No religious test shall be Paragraph 9 of the SJS Petition
required for the exercise of civil or political rights. (5 of Article III) reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

9
Assailed Decision, pp. 2-3; rollo, pp. 40-41. Whether or not the act of a religious leader, like any of herein
10
Id., pp. 3 & 41. respondents, in endorsing the candidacy of a candidate for elective
11
Id., pp. 10 & 48. office or in urging or requiring the members of his flock to vote for a
12
The Petition was deemed submitted for decision on April 19, 2004, specified candidate, is violative of the letter or spirit of the
upon receipt of the parties Memoranda. Petitioners Memorandum constitutional provisions herein abovequoted. (All capital letters in the
was signed by Attys. Joselito Guianan Chan and Cesar Becerro original.)
Tuozo. On the other hand, respondents Memorandum was signed by

534
25
PACU v. Sec. of Education, 97 Phil 806, October 31, 1955; People July 3, 1992; Joya v. PCGG, supra; Kilosbayan, Inc. v. Guingona
v. Vera, 65 Phil 56, November 16, 1937; Agra v. Philippine National Jr., 232 SCRA 110, May 5, 1994.
47
Bank, 368 Phil 829, June 29, 1999; Gonzales v. Narvasa, 337 SCRA Supra.
48
733, August 14, 2000; Pimentel Jr. v. House of Representatives Id., p. 102, per Kapunan, J.
49
Electoral Tribunal, 393 SCRA 227, November 29, 2002; Gozun v. Rule 5 of the Rules of Court, which prescribes a uniform procedure
Liangco, supra. in trial courts, reads thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
26
Petition for Review, p. 16; rollo, p. 18.
27
Ibid. Section 1. Uniform procedure. The procedure in the Municipal Trial
28
Rebollido v. Court of Appeals, 170 SCRA 800, February 28, Courts shall be the same as in the Regional Trial Courts except (a)
1989; Leberman Realty Corporation v. Typingco, 293 SCRA 316, July where a particular provision expressly or impliedly applies only to
29, 1998. either of said courts, or (b) in civil cases governed by the Rule on
29
Paranaque Kings Enterprises, Incorporated v. Court Of Appeals, Summary Procedure.
335 Phil. 1184, February 26, 1997, citing Dulay v. Court of Appeals,
313 Phil. 8, April 3, 1995; Virata v. Sandiganbayan, 272 SCRA 50
3 of Rule 1 of the Rules of Court
661,May 27, 1997. provides:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
30
1(g) of Rule 16 in relation to 3, Rule 17 of the Rules of Court.
31
Regalado, Remedial Law Compendium, 6th revised ed., p. 693.
32 Cases governed. -- These Rules shall govern the procedure to be
Petition for Declaratory Relief, p. 3; rollo, p. 272.
33 observed in actions, civil or criminal, and special proceedings.
Integrated Bar of the Philippines v. Zamora, 338 SCRA 81, August
15, 2000.
34
Ibid. x x x.
35
Comment, p. 3; rollo, p. 151.
51
36
Petition for Declaratory Relief, p. 4; id., p. 273. 1(g) of Rule 16 in relation to 3 of Rule 17, id.
52
37
Integrated Bar of the Philippines v. Zamora, supra; citing Joya v. 3 of Rule 6 of the Rules of Court.
53
PCGG, 225 SCRA 568, 576, August 24, 1993. 1 of Rule 8, id.
54
38
Id. 2(c) of Rule 7, id.
55
39
Petition for Review, p. 20; rollo, p. 22. 1 & 2(b) of Rule 14, id.
56
40
BAYAN (Bagong Alyansang Makabayan) v. Executive 1 of Rule 11, id.
57
Secretary, 342 SCRA 449, October 10, 2000. 2(c) of Rule 14, id.
58
41
Ibid. 11 of Rule 11, id.
59
42
Del Mar v. Philippine Amusement and Gaming Corporation, 346 4, id.
60
SCRA 485, November 29, 2000. 6, id.
61
43
Telecommunications and Broadcast Attorneys of the Phil., Inc. v. 1 of Rule 34 of the Rules of Court.
62
Comelec, 289 SCRA 337, April 21, 1998; Sanidad v. Comelec, 73 1 of Rule 35, id.
63
SCRA 333, October 12, 1976. 2, id.
64
44
See IBP v. Zamora, supra. 3, id.
65
45
Ibid. See also Tolentino v. Board of Accountancy,90 Phil. 83, 2 of Rule 16 of the Rules of Court.
66
September 28, 1951. 3, id.
67
46
Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 4, id.
68
November 5, 1997; Garcia v. Executive Secretary, 211 SCRA 219, 1 of Rule 18 of the Rules of Court.

535
69
2, id.At the pretrial, the court shall consider the (b) A summary of admitted facts and proposed stipulation of
following:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ facts;chanroblesvirtuallawlibrary

(a) The possibility of an amicable settlement or of a submission to (c) The issues to be tried or resolved;chanroblesvirtuallawlibrary
alternative modes of dispute resolution;chanroblesvirtuallawlibrary
(d) The documents or exhibits to be presented, stating the purpose
(b) The simplification of the issues;chanroblesvirtuallawlibrary thereof;chanroblesvirtuallawlibrary

(c) The necessity or desirability of amendments to the (e) A manifestation of their having availed or their intention to avail
pleadings;chanroblesvirtuallawlibrary themselves of discovery procedures or referral to commissioners;
andcralawlibrary
(d) The possibility of obtaining stipulations or admissions of facts and
of documents to avoid unnecessary proof;chanroblesvirtuallawlibrary (f) The number and names of the witnesses, and the substance of
their respective testimonies.
(e) The limitation of the number of
72
witnesses;chanroblesvirtuallawlibrary 7, id.
73
Rules 23-28 of the Rules of Court.
74
(f) The advisability of a preliminary reference of issues to a 1 of Rule 30, id.
75
commissioner;chanroblesvirtuallawlibrary 1 & 2 of Rule 32, id. 2 reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

(g) The propriety of rendering judgment on the pleadings, or summary x x x When the parties do not consent, the court may, upon the
judgment, or of dismissing the action should a valid ground therefor application of either, or of its own motion, direct a reference to a
be found to exist;chanroblesvirtuallawlibrary commissioner in the following cases:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

(h) The advisability or necessity of suspending the proceedings; (a) When the trial of an issue of fact requires the examination of a
andcralawlibrary long account on either side, in which case the commissioner may be
directed to hear and report upon the whole issue, or any specific
(i) Such other matters as may aid in the prompt disposition of the question involved therein;chanroblesvirtuallawlibrary
action.
(b) When the taking of an account is necessary for the information of
70
5, id. the court before judgment, or for carrying a judgment or order into
71
6, id.The pretrial briefs shall contain, among effect;chanroblesvirtuallawlibrary
others:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(c) When a question of fact, other than upon the pleadings, arises
(a) A statement of their willingness to enter into amicable settlement upon motion or otherwise, in any stage of a case, or for carrying a
or alternative modes of dispute resolution, indicating the desired judgment or order into effect.
terms thereof;chanroblesvirtuallawlibrary
76
3, id.
77
9, id.
78
11, id.
536
79
1 of Rule 36 of the Rules of Court.
80
Moran, Comments on the Rules of Court, Vol. I (1995 ed.), p. 165.
81
In fact, SJS, through counsel, admitted during the Oral Argument
that its Petition contained no statement of facts and argued that by
the nature of an action for declaratory relief, no facts were necessary.
82
Assailed Decision, pp. 2-3; rollo, pp. 40-41.
83
Id., pp. 3 & 41.
84
Annex J of the Petition for Review; rollo, p. 119.
85
Annex I of the Petition for Review; id., p. 117.
86
Ibid.
87
See3 of Rule 63 of the Rules of Court.
88
14 of Article VIII of the Constitution.
89
Yao v. Court of Appeals, 344 SCRA 202, October 24,
2000; Francisco v. Permskul, 173 SCRA 324, May 12, 1989; Nicos
Industrial Corporation v. Court of Appeals, 206 SCRA 127, February
11, 1992; People v. Dumaguing, 340 SCRA 701, September 20,
2000; Madrid v. Court of Appeals, 332 SCRA 570,May 31,
2000; Suarez v. Court of Appeals, 193 SCRA 183, January 23, 1991.
90
Supra, p. 219.
91
339 Phil. 570, 580, June 13, 1997, per Mendoza, J.
92
Nicos Industrial Corp. v. Court of Appeals, 206 SCRA 127,
February 11, 1992; People v. Judge Bellaflor, 233 SCRA 196, June
15, 1994; Anino v. NLRC, 352 Phil. 1098, May 21, 1998.
93
Supra.
94
104 Phil. 254, July 31, 1958, per Felix, J.
95
Assailed Decision, p. 10; rollo, p. 48.
96
120 Phil. 338, June 30, 1964, per Regala, J.
97
Yao v. Court of Appeals, supra; Madrid v. Court of Appeals, supra.
98
See Panganiban, On Developing My Decision-Writing
Style, Justice and Faith (1997), pp. 9-29.
99
Agra v. Philippine National Bank, 368 Phil 829, June 29,
1999; Gonzales v. Narvasa, 337 SCRA 733, August 14,
2000; Pimentel Jr. v. House of Representatives Electoral
Tribunal, 393 SCRA 227, November 29, 2002; Gozun v.
Liangco, supra; Fernandez v. Torres, 215 SCRA 489, November 6,
1992.
100
National Economic Protectionism Association v. Ongpin, 171
SCRA 657, 664, April 10, 1989, per Paras, J.

537
538